United States District Court, D. New Jersey
May 10, 2005.
JOHN FLEMING, Plaintiff,
MARK WESTFALL, et al., Defendants.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Plaintiff, John Fleming, incarcerated at the Federal
Correctional Center, Beaumont, Texas at the time he filed the
instant complaint, 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, 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
At this time, the Court must review the complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A 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
The following factual allegations are taken from Plaintiff's
Complaint and are accepted as true for purposes of this review.
Plaintiff seeks to sue two Burlington County assistant
prosecutors, defendants Westfall and Bernardi, stating that they
"performed acts of bad faith in violation of H.R. 3396 Citizen's
Protection Act of 1998, 28 U.S.C. 530B, rules of ethics, and
violations of constitutional law." In particular, Plaintiff
claims that these defendants are liable to him because of
violations concerning his underlying state court criminal charges
and/or convictions; including absence of probable cause to
indict, discovery and evidentiary misstatements, and violations
of rules of ethics.
Plaintiff asks for relief under 28 U.S.C. § 530B, the
Constitution, and the Hyde Amendment. Specifically, he asks that
the acts of these defendants be referred to a grand jury, that
they be dismissed from their positions, with a loss of pension
and retirement benefits, and that they are referred to the ethics committee. He also asks for dismissal of the charges against him.
A. Section 1915 Review
In 1996, Congress enacted the Prison Litigation Reform Act
("PLRA"), Title VIII of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321
(April 26, 1996). Congress's purpose in enacting the PLRA was
"primarily to curtail claims brought by prisoners under
42 U.S.C. § 1983 and the Federal Tort Claims Act . . . many of which are
routinely dismissed as legally frivolous." Santana v. United
States, 98 F.3d 752, 755 (3d Cir. 1996). A crucial part of the
congressional plan for curtailing meritless prisoner suits is the
requirement, embodied in 28 U.S.C. § 1915A(b), that a court must
dismiss, at the earliest practicable time, any prisoner actions
that are frivolous or malicious, fail to state a claim, or seek
monetary relief from immune defendants. "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.'"
Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)).
In determining the sufficiency of a complaint, the Court must
be mindful to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court should
"accept as true all of the allegations in the complaint and
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, lend credit to a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
B. 28 U.S.C. § 530B
Plaintiff seeks to bring this action alleging a violation of
the "Citizen's Protection Act of 1998," 28 U.S.C. § 530B. That
statute, however, applies to attorneys of the Federal Government,
mandating that federal attorneys be subject to ethical standards
dictated by state laws and rules, and local federal court rules
in the state where the attorney practices. See
28 U.S.C. § 530B; see also 28 C.F.R. § 77.1, et seq. In this case,
Plaintiff seeks to sue two state prosecutors, not federal
Furthermore, the statute cited by Plaintiff does not "create a
right or benefit, substantive or procedural, enforceable at law
by a party to litigation with the United States, including
criminal defendants . . . and shall not be a basis for dismissing
criminal or civil charges or proceedings. . . ."
28 C.F.R. § 77.5. Therefore, Plaintiff's claims under § 530B will be dismissed
for failure to state a claim upon which relief may be granted,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
C. Hyde Amendment
Plaintiff also states that he is entitled to relief under the
Hyde Amendment, in which Congress authorized federal courts to
"award to a prevailing party [in a criminal case], other than the
United States, a reasonable attorney's fee and other litigation
expenses, where the court finds that the position of the United
States was vexatious, frivolous, or in bad faith, unless the
court finds that special circumstances make such an award
unjust." Pub.L. No. 105-119, 111 Stat. 2440, 2519 (1997)
(reprinted in 18 U.S.C. § 3006A, historical and statutory notes);
see United States v. Gilbert, 198 F.3d 1293, 1299-1303 (11th
Cir. 1999) (discussing the Hyde Amendment's legislative history).
In the instant case, the Hyde Amendment's provisions for
attorney's fees would not apply to Plaintiff, as he is not a
prevailing party in a federal criminal case. Therefore, these
claims will be dismissed for failure to state a claim upon which
relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
D. Constitutional Violations
Plaintiff also seeks relief citing "constitutional violations."
A plaintiff may have a federal cause of action under 42 U.S.C. § 1983 for alleged 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 establish a violation of 42 U.S.C. § 1983, a 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 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).
First, the only named defendants are state court prosecutors,
who are immune from damages for actions taken in their official
prosecutorial capacities. See Imbler v. Pachtman,
424 U.S. 409 (1976).
Second, 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. 411 U.S. at 494. 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, 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
[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
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
512 U.S. at 487 (footnotes omitted). 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.
To the extent Plaintiff seeks damages arising from the
allegedly unlawful actions of the defendants, and if the facts
are as pleaded by Plaintiff, a judgment in Plaintiff's favor on
these claims necessarily would imply the invalidity of his
conviction. Thus, based upon the facts as pleaded, these claims
appear to be barred by Preiser and/or Heck until such time as
the conviction is otherwise invalidated. CONCLUSION
For the foregoing reasons, Plaintiff's complaint will be
dismissed for failure to state a claim upon which relief may be
granted. An appropriate Order accompanies this Opinion.