United States District Court, D. New Jersey
September 14, 2005.
MICHAEL HOLNESS, Plaintiff,
VINCENT P. SARUBBI, Defendant.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Plaintiff Michael Holness ("Holness"), a state pre-trial
detainee currently confined at the Camden County Correctional
Facility in Camden, New Jersey, seeks to bring this action in
forma pauperis pursuant to 42 U.S.C. § 1983,*fn1
alleging violations of his constitutional rights. Based on his
affidavit of indigence and the absence of three qualifying
dismissals within 28 U.S.C. § 1915(g), the Court will grant
plaintiff's application to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the
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 reasons set forth below, the Court concludes that the
Complaint should be dismissed without prejudice.
In his Complaint, Holness alleges that defendant, Camden County
Prosecutor Vincent P. Sarubbi, violated his Sixth Amendment right
to a speedy trial. Holness also alleges that Sarubbi charged and
imprisoned plaintiff on false statements made by witnesses and
investigating police officers. Plaintiff further asserts that
Sarubbi sought to keep him in jail on an excessive bail. Finally,
Holness contends that Sarubbi did not do a thorough investigation
of the case and did not act in a professional manner. (Complaint,
"Cause of Action", ¶¶ 1-5).
Holness seeks a dismissal of his state criminal charges, to be
released from jail, and to be paid $2,500 in restitution for each
day he is incarcerated. (Compl., "Demand"). II. STANDARDS FOR A 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 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.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.*fn2
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 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 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)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be
remedied by an amendment, a district court may not dismiss the
complaint with prejudice, but must permit the amendment. Denton
v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker,
363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading
requirement that it contain short, plain statement of the claim
but lacked sufficient detail to function as a guide to discovery
was not required to be dismissed for failure to state a claim; district court should permit a curative amendment before
dismissing a complaint, unless an amendment would be futile or
inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002) (dismissal pursuant to
28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia
v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir.
III. SECTION 1983 ACTIONS
Holness brings this action pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights guaranteed under the
United States Constitution. Section 1983 provides in relevant
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
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250
, 1255-56 (3d
Cir. 1994). Here, there is no question that the named defendant, Vincent P. Sarubbi, a state prosecutor with the Camden County
Prosecutor's Office, is a state actor.
"[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. Imbler v. Pachtman,
424 U.S. 409, 410 (1976). See also Kulwicki v. Dawson,
969 F.2d 1454, 1465 (3d Cir. 1992); Schrob v. Catterson, 948 F.2d 1402,
1417 (3d Cir. 1991); Rose v. Bartle, 871 F.2d 331, 345 and n.
12 (3d Cir. 1989). 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." Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
Prosecutors also are absolutely immune from a civil suit for
damages under § 1983 for: (1) instituting grand jury proceedings
without proper investigation and without a good faith belief that
any wrongdoing occurred, Schrob, 948 F.2d at 1411; Rose v.
Bartle, supra; (2) initiating a prosecution without a good
faith belief that any wrongdoing has occurred, Kulwicki,
969 F.2d at 1463-64; (3) soliciting false testimony from witnesses in grand
jury proceedings, probable cause hearings, and trials, Burns,
500 U.S. at 490; Kulwicki, 969 F.2d at 1467; and (4) the
knowing use of perjured testimony in a judicial proceeding,
Imbler, 424 U.S. at 424-27; Schrob, 948 F.2d at 1417; Brawer
v. Horowitz, 535 F.2d 830 (3d Cir. 1976).
Thus, a prosecutor is absolutely immune when making a decision
to prosecute, "even where he acts without a good faith belief
that a wrongdoing has occurred." Kulwicki, 969 F.2d at 1463-64;
Rose, 871 F.2d at 343. In this regard, a falsely-charged
defendant may be "remedied by safeguards built into the judicial
system," such as dismissal of the charges. Kulwicki,
969 F.2d at 1464.
Here, Holness essentially alleges that defendant Sarubbi
committed prosecutorial misconduct by charging plaintiff on false
statements made by witnesses and investigating police officers,
by delaying plaintiff's trial, by proposing excessive bail so
that plaintiff remains in jail, and by not thoroughly
investigating the case and being unprofessional in the
prosecution of plaintiff. These allegations plainly show that
Sarubbi was acting in his official prosecutorial role, and thus,
is protected by immunity from a damages lawsuit for conduct
during pre-trial and trial proceedings. Therefore, the Court will dismiss the Complaint for damages, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
Moreover, Holness' claims of prosecutorial misconduct, which he
asserts as a challenge to the state criminal charges against him
in an effort to have the state charges dismissed, must be raised
in Holness' pending criminal proceedings in state court; a
federal court generally will not intercede to consider issues
that Holness has an opportunity to raise before the state court.
Younger v. Harris, 401 U.S. 37 (1971).
The United States Court of Appeals for the Third Circuit has
enunciated three requirements that must be met before Younger
abstention may be invoked:
(1) there are ongoing state proceedings that are
judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to
raise federal claims. Whenever all three of these
requirements are satisfied, abstention is appropriate
absent a showing of bad faith prosecution,
harassment, or a patently unconstitutional rule that
will cause irreparable injury to the plaintiff.
Port Auth. Police Benevolent Ass'n v. Port Auth. of New York and
New Jersey Police Dep't, 973 F.2d 169
, 173 (3d Cir. 1992)
(citing Schall v. Joyce, 885 F.2d 101
, 106 (3d Cir. 1989)).
Here, Holness is admittedly a pre-trial detainee awaiting trial;
thus state proceedings implicating important state interests are
ongoing and Holness has the opportunity to raise his claims in
that proceeding. Therefore, this Court is constrained by
Younger to dismiss Holness' Complaint against Prosecutor Sarubbi for his
alleged misconduct in prosecuting plaintiff.
Holness also has no claim for damages at this time with respect
to his claims of prosecutorial misconduct or malicious
prosecution, unless and until the criminal proceedings are
resolved in his favor or the conviction against him is
invalidated. See Heck v. Humphrey, 512 U.S. 477, 486 (1994).
Further, if Holness is eventually convicted of the alleged
charges in his now-pending state criminal trial, he must first
exhaust his state court remedies by direct appeal or other
available state court review, and then, if appropriate, file a
federal habeas application to assert any violations of federal
constitutional or statutory law, namely, his claims of
prosecutorial misconduct. Preiser v. Rodriguez, 411 U.S. 475
For the reasons set forth above, the Complaint must be
dismissed in its entirety, without prejudice, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii) and 1915A(b)(1), (2). An
appropriate order follows.
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