United States District Court, D. New Jersey
August 5, 2005.
WILFREDO HERNANDEZ, Plaintiff,
ALLA ISOKOVAN, et al., Defendants.
The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
Plaintiff Wilfredo Hernandez, a prisoner incarcerated at South
Woods State Prison seeks to file a Complaint in forma pauperis,
pursuant to 28 U.S.C. § 1915. Based on his affidavit of poverty,
prison account statement, and the apparent absence of three
dismissals within 28 U.S.C. § 1915(g), this Court (1) grants
Plaintiff's application to proceed in forma pauperis; (2)
directs the Clerk to file the Complaint without pre-payment of
the filing fee; (3) assesses a $250.00 filing fee against
Plaintiff; (4) directs the New Jersey Department of Corrections
("NJDOC") to deduct an initial partial filing fee from
Plaintiff's prison account, when funds exist, and forward same to
the Clerk of the Court; and (5) directs the NJDOC to forward
payments from Plaintiff's prison account to the Clerk each
subsequent month that the amount in the account exceeds $10.00,
until the total of $250.00 is paid in full. See
28 U.S.C. § 1915(a), (b). This Court has reviewed the Complaint for sua sponte dismissal, pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A, and concludes that dismissal of
the Complaint is required.
Plaintiff's claims relate to his arrest by the New Brunswick
Police Department on April, 3, 2003. The named Defendants are
Alla Isokovan and Michelle Isokovan, complaining witnesses, and
the New Brunswick Police Department. Plaintiff asserts the
following facts, which the Court must accept as true for the
purpose of this review. Plaintiff alleges that on March 27, 2003,
Alla Isokovan falsely told the police that Plaintiff had sexually
assaulted her daughter, Michelle Isokovan. He asserts that on
April 3, 2003, the police arrested him in violation of his
constitutional rights on a warrant as a result of the false
statements made by Michelle and Alla Isokovan. Plaintiff further
asserts that his arrest was unconstitutional because he was
arrested without an indictment by a grand jury. He seeks
compensatory relief for false arrest.
II. STANDARD FOR SUA SPONTE DISMISSAL
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 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 governmental employee. The PLRA requires the Court to
review a prisoner's complaint to identify cognizable claims and
to sua sponte dismiss any claim if the Court determines that it
is frivolous, malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). A claim is frivolous if it "lacks even an arguable basis in
law" or its factual allegations describe "fantastic or delusional
scenarios." Neitzke v. Williams, 490 U.S. 319, 328 (1989); see
also Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). "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)).
"[T]he Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he bases his
claim." Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168 (1993) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A pro se complaint is held
to less stringent standards than formal pleadings drafted by
lawyers. Haines, 404 U.S. at 520. At a minimum, 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).
"Rule 12(b)(6) does not countenance . . . dismissals based on a
judge's disbelief of a complaint's factual allegations."
Neitzke, 490 U.S. at 327. Rather, the Court is "required to
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).
Liberally construing Plaintiff's allegations and accepting them
as true, the Court reads the instant Complaint as asserting that
Plaintiff's arrest was unconstitutional because it was based on a
false accusation and not pursuant to an indictment. III. DISCUSSION
Section 1983 of Title 42 of the United States Code authorizes a
person such as Plaintiff to seek redress for a violation of his
federal civil rights by a person who was acting under color of
state law. 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.
To recover under 42 U.S.C. § 1983, a plaintiff must show two
elements: (1) a person deprived him or caused him to be deprived
of a right secured by the Constitution or laws of the
United States, and (2) the deprivation was done under color of state
law. See West v. Atkins, 487 U.S. 42
, 48 (1988); Adickes v.
S.H. Kress & Co., 398 U.S. 144
, 152 (1970).
A. State Action
Plaintiff asserts that Defendants Alla and Michelle Isokovan
falsely told New Brunswick police that he had sexually assaulted
Michelle and that he was arrested on a warrant a week later as a
result of the false accusation. The problem with this § 1983
claim is that, on the facts alleged in the Complaint, these
Defendants were not acting under color of state law. "[T]he
under-color-of-state-law element of § 1983 excludes from its
reach `merely private conduct, no matter how discriminatory or
wrongful.'" American Manufacturers Mutual Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999) (internal citations omitted).*fn1
Plaintiff's claims against the Isokovans fail because a private person's false statement to the police or in a
criminal proceeding is not, without more, state action under §
1983. See Briscoe v. LaHue, 460 U.S. 325, 329-330 (1983);
Adickes v. S.H. Kress & Co., 398 U.S. at 152; Cruz v.
Donnelly, 727 F.2d 79, 82 (3d Cir. 1989). Under these
circumstances, Plaintiff's § 1983 claims are dismissed against
Alla and Michelle Isokovan because they were not acting under
color of state law when they gave allegedly false statements to
police accusing Plaintiff of criminal behavior. See
28 U.S.C. §§ 1915(c)(2)(B)(ii), 1915A(b)(1).
B. False Arrest
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.
In this case, Plaintiff asserts that police officers arrested
him for sexual assault based on statements given by Alla and
Michelle Isokovan that he had sexually assaulted Michelle.
Plaintiff maintains that the complaining witnesses' statements to
the police were false, and he insists that the arrests therefore
violated his constitutional rights. However, this is not a
correct statement of federal constitutional law. "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 bad 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). Given this standard, the statements by
the Isokovans provided probable cause that Plaintiff had
committed a crime.
C. Indictment Clause
Plaintiff asserts that his arrest was unconstitutional because
he was not indicted by a grand jury. The Indictment Clause of the
Fifth Amendment provides: "No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger." U.S. CONST. amend. V.
The problem with Plaintiff's claim is that the Fifth Amendment
right to an indictment does not apply to state criminal
prosecutions. See Apprendi v. New Jersey, 530 U.S. 466, 477
n. 3 (2000); Albright v. Oliver, 510 U.S. 266, 272 (1994);
Hurtado v. California, 110 U.S. 516 (1884). Because the Due
Process Clause of the Fourteenth Amendment has not been construed
to incorporate the Fifth Amendment right to indictment by a Grand
Jury, id., the legality of an indictment is primarily a matter
of state law, see U.S. Wojtycha v. Hopkins, 517 F.2d 420, 425
(3d Cir. 1975).*fn2 Accordingly, "there is no federal
constitutional impediment to dispensing entirely with the grand
jury in state prosecutions," Beck v. Washington, 369 U.S. 541,
545 (1962), and "the accused is not `entitled to [federal]
judicial oversight or review of the decision to prosecute,'" Albright v. Oliver, 510 U.S. 266, 274 (1994)
(quoting Gerstein v. Pugh, 420 U.S. 103, 118-119 (1975)).
Without offending the Constitution, State prosecutions may be
"instituted on informations filed by the prosecutor, on many
occasions without even a prior judicial determination of
`probable cause' a procedure which has likewise had approval
[of the Supreme Court] in such cases as Ocampo v.
United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), and
Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340
(1913)." Beck v. Washington, 369 U.S. at 545; accord Rose v.
Mitchell, 443 U.S. 545, 576 (1979) ("[t]here is no
constitutional requirement that a state criminal prosecution even
be initiated by a grand jury"). This Court shall dismiss the
claim challenging the arrest on the ground that there was no
This Court grants Plaintiff's application to file the Complaint
in forma pauperis and dismisses the Complaint for failure to
state a claim upon which relief may be granted.