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 ...