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Desposito v. State

United States District Court, D. New Jersey

May 5, 2015

STATE OF NEW JERSEY, et al., Defendants.




Plaintiff Sonny Desposito, a prisoner currently confined at Federal Correctional Institution, Miami, Florida, seeks to bring this action in forma pauperis Based on his affidavit of indigence, the Court will grant Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the complaint.[1]

At this time, the Court must review the Amended 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 Amended Complaint should be dismissed in part, and Plaintiff will be granted leave to file another amended complaint to cure the deficiencies described herein.


Plaintiff filed the instant Complaint pursuant to 28 U.S.C. § 1983 on March 14, 2014, and his signed Complaint is dated February 18, 2014.[2] (No. 1 at 60.) On August 8, 2014, Plaintiff filed a 60-page Amended Complaint naming 28 individuals and entities as Defendants in the instant action. The Amended Complaint offers a stream of consciousness account of numerous alleged wrongs perpetrated against Plaintiff by various state actors and private parties over a period of ten years. The gravamen of Plaintiff's Amended Complaint, however, appears to be that the named Defendants conspired to arrest, imprison, charge, and prosecute Plaintiff for a robbery that occurred on April 20, 2008 and for which he was ultimately acquitted in March 2012 following a jury trial. Plaintiff contends that he was framed for the 2008 robbery and that the named individual Defendants in the Bergen County Prosecutor's Office, the Westwood Police Department, and the Bergen County Sheriffs Department fabricated evidence against him, created an impermissibly suggestive photo array, and coerced witnesses to identify him as the perpetrator of the robbery. Plaintiff further contends that the State's key witnesses, the judge that presided over his trial, and his both his retained and court-appointed attorneys also participated in the conspiracy to wrongly convict him of the 2008 robbery.

Plaintiff traces the conspiracy to convict him of the 2008 robbery to a vendetta on the part of the Westwood Police Department and officers. (Am. Compl. at 12-23.) Plaintiff contends that this vendetta against him and his family dates back to 2002. He also recounts details of a separate incident in the 2008 timeframe in which Westwood Police brought charges against Plaintiff's brother. ( Id. at 12-13.) Plaintiff has sued Officer Michael Pontillo, Sergeant Robert Held, Detective Robert Saul, Jr., Sergeant Gerard Fortunat, Sergeant Hucheson and Police Chief Frank Regina, all of the Westwood Police Department. Plaintiff contends that the Westwood Police Department's longstanding vendetta against him and his family amounted to an unofficial policy within the department and that Chief Frank Regina is responsible for the conduct of his subordinates. (Am. Compl. at 50.)

Plaintiff's Amended Complaint also details several incidents in which he was mistreated by members of the Westwood Police Department and sheriffs at the Bergen County Jail while in custody in connection with the 2008 robbery. While in Westwood police custody in early 2008[3], Plaintiff also alleges he was mistreated by the officers and that the Chief Frank Regina was both aware of this conduct and participated in it. (Am. Compl. at 15-16.) While incarcerated at Bergen County Jail as a pretrial detainee beginning on April 24, 2008, Plaintiff alleges that he was likewise mistreated by the Bergen County Sheriffs. (Am. Compl. at 23.) Plaintiff contends that the Bergen County Sheriff also executed a search warrant on Plaintiff's residence in June of 2009, and the officers conducting the search allegedly destroyed his property and stole valuable items from him. (Am. Compl. at 24.)

Plaintiff additionally alleges that "[t]wo unknown Berger [sic] County sheriffs threatened [his] life [on] 3-14-12 in the Hackensack Superior Court House in N.J." (See Am. Compl. at 53.) This threat allegedly occurred on the first day of his trial on the robbery charges. (See id. at 26.) Plaintiff contends that the sheriffs allegedly told him if he did not "plead guilty, we are going to kill you in the cell." ( Id. ) Plaintiff further alleges that one of the sheriffs told Plaintiff "not to voice constitutional issues." Id. at 53.

After Plaintiff was acquitted on March 27, 2012, the sheriffs at the Bergen County jail allegedly punished Plaintiff and another man by locking them in their shared cell without running water or a working toilet. ( Id. at 24, 54.) The toilet backed up, and despite the unbearable smell, the sheriffs refused to permit Plaintiff or his cellmate to change cells or use the bathroom elsewhere. ( Id. at 24.)

Plaintiff has also alleged a number of "separate but related claim[s]." ( Id. at 30.) Under this category, Plaintiff has sued the judge that presided over his trial, alleging that the Honorable Donald R. Venezia participated in the conspiracy to falsely imprison Plaintiff and citing to Judge Venezia's pretrial and trial rulings as evidence of that alleged participation. (Am. Compl. at 31-32.)

Plaintiff has also sued the Defendant Joshua T. Buckner, his attorney that represented him in pretrial proceedings, for telling Plaintiff's family in 2008 that Plaintiff was guilty of the 2008 robbery, for refusing to file various motions on Plaintiff's behalf, for depleting Plaintiff's $12, 000 retainer, and seeking to withdrawal from the case before trial. (Am. Compl. at 58.) Plaintiff alleges that Buckner participated in the conspiracy to convict him of the 2008 robbery by telling Plaintiff that needed to cut off his dreadlocks, which was the very feature that allegedly distinguished Plaintiff from actual perpetrator and the feature that Plaintiff believed proved his innocence. ( Id. at 33.) Plaintiff has also sued Buckner's firm, Sunshine, Atkin, Minassian, Tafuri & D'Amato, P.A., alleging that the named partners are responsible for the conduct of Buckner. ( Id. at 56).

Plaintiff has also sued the Office of the Public Defender in Bergen County, Louis Acevedo, and James Gizzi. Plaintiff contends that the Office of the Public Defender has waged "financial warfare" on him and reported him to various collection agencies. (Am. Compl. at 37-42.) Acevedo likewise reported Plaintiff to collection agencies and told him he would need to pay for his right to counsel. Plaintiff alleges the Gizzi, who appears to have represented him at trial, "acted as a government mole, sabotaging [Plaintiff's] defense from the inside." (Am. Compl. 39.) He contends that Gizzi sabotaged his defense by refusing to investigate the robbery, refused to obtain police reports, videos, and pictures that would have exculpated him, and refused to secure travel and accommodation for Plaintiff's out-of-state witnesses. ( Id. )

Finally, Plaintiff contends that a Bergen County Sheriff "Darri E. Dewitt defamated [sic] my character in front of witnesses at the corners of Tiffany Avenue along River Vale Road in N.J. on October 7, 2013." (Am. Compl. at 55; see also id. at 26.) At the relevant time, Dewitt was Plaintiff's father's neighbor. ( Id. at 26.) According to Plaintiff, Dewitt became angry after a tree from Plaintiff's father's yard fell in Dewitt's yard, and Dewitt allegedly told Plaintiff's father, in front of witnesses, that he had arrested Plaintiff, a fact that Plaintiff disputes. ( Id. at 26-27.)

Plaintiff alleges that he has suffered emotional distress and post-traumatic stress disorder or PTSD as a result of the Defendants' wrongdoing and seeks varying amounts of damages from all Defendants. In addition, he seeks equitable relief from witnesses Betty Masariggo, Jennifer Rose Rothenhousen, and David Potter. (Am. Compl. at 60.)


A. Application for Default Judgment

On November 6, 2014, Plaintiff wrote to the Court "requesting] the Court to issue default Judgment against all Defendants" because Defendants failed to respond to the summons issued by the Court on August 7, 2014. (No. 9.) In his application, Plaintiff does not indicate whether he served the summons on any of the Defendants.

Entry of default and default judgment are governed by Federal Rule of Civil Procedure 55. Entry of default judgment is a two-step process. See Fed.R.Civ.P. 55(a), (b). A party seeking to obtain a default judgment must first request that the Clerk of the Court "enter... the default" of the party that has not answered the pleading or "otherwise defend[ed], " within the time required by the rules or as extended by court order. Fed.R.Civ.P. 55(a).[4] After a default is entered against a party, the court may, pursuant to Fed.R.Civ.P. 55(b)(2), enter a default judgment against a party who has failed to plead or otherwise defend. See Limehouse v. Delaware, 144 F.Appx. 921, 923 (3d Cir. 2005) ("[T]he District Court properly denied the motion because Limehouse failed to obtain entry of default prior to seeking a default judgment.").

Even where a Plaintiff seeks entry of default prior to seeking default judgment, the entry of default will be set aside when the Complaint has not been properly served. See Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985); GrandEntm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 493 (3d Cir. 1993) (holding that a default will be set aside if it was not properly entered). Pursuant to Federal Rule of Civil Procedure 4, the Clerk of the Court must issue a summons as to the defendant and the plaintiff must then serve the summons with a copy of the complaint on the defendant. Plaintiff's bear the burden of proving sufficient service of process, and when a plaintiff fails to properly serve a defendant with a summons and a complaint in accordance with Rule 4, a default cannot stand and must be vacated. See Grand Entm't Group, 988 F.2d 476 at 493; In re Forrest, 403 F.Appx. 768 (3d Cir.2010) (district court is not required to order the United States Marshals Service to serve a complaint filed by an inmate proceeding in forma pauperis under Fed.R.Civ.P. 4(c)(3) until it had first screened the case pursuant to 28 U.S.C. § 1915A).

Here, the Court construes Plaintiff's application as a motion for default judgment and denies that motion because he did not first seek entry of default and has not indicated that he effected service on any of the Defendants.

B. 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 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. This action is subject to sua sponte screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) and § 1915A.

"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F.Appx. 120, 122 (3d Cir.2012) (per curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000)); Mitchell v. Beard, 492 F.Appx. 230, 232 (3d Cir.2012) (per curiam) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.Appx. 159, 162 (3d Cir.2008) (discussing 28 U.S.C. § 1915A(b)).

Under Fed.R.Civ.P. 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012). The complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Allegations that are no more than legal conclusions are not entitled to the same assumption of truth. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.2012). To determine if a complaint meets the pleading standard, the Court must strip away conclusory statements and "look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement of relief." Id. (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

A complaint filed by a pro se litigant is to be liberally construed and held to a less stringent standard than formal complaints drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 10-4710, 2013 WL 57895 at *4 (3d Cir. Jan. 7, 2013).

C. The "Short Plain Statement" Requirement of Rule 8

Before assessing the substance of Plaintiff's Amended Complaint, the Court addresses the stream of consciousness styling of Plaintiff's pleading. Pursuant to the Federal Rules of Civil Procedure, a pleading 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). A complaint may generally be dismissed for violating Rule 8 if it is also so rambling, unclear, or complicated so as to defy response. See, e.g., In re Westinghouse Sec. Litig., 90 F.3d 696, 703 (3d Cir. 1996) ("The second amended complaint is unnecessarily complicated and verbose."). In this regard, the Court notes that the meandering nature of Plaintiff's amended complaint, its overlapping and confusing discussions of Defendants and issues, and the inclusion of unrelated issues and digressions ...

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