United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a civil rights Complaint
filed by Plaintiff Henry Saye Gofan Junior. Plaintiff appears
to be a pretrial detainee who is being prosecuted for
unspecified crimes by the State of New Jersey. ECF No. 1 at
2. Most of the claims in the Complaint appear to center
around this criminal prosecution, although there are a few
conditions of confinement claims regarding his incarceration,
most notably excessive force claims against certain
correctional officers. ECF No. 1 at 61. The Complaint names
45 defendants. As Plaintiff has been granted in forma
pauperis status, the Court must review the Complaint to
see if it is subject to dismissal under 28 U.S.C.
§1915(e)(2)(B), on the account that it is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. It appearing:
plaintiff can pursue a cause of action under § 1983 for
certain 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 ....
42 U.S.C. § 1983. Thus, to state a claim for relief
under § 1983, a plaintiff must establish, 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. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d
160, 166-7(3dCir. 2013).
Defendants Edward A. Belmount, Kathleen Redpath Perez, Mark
A. Fury, Alson Riddick, Vernon Clash, Stephen E. Slaven,
Laura Allison Yeade, Davit L. Soffer, Jessica Lyons, Anthony
Cowell, and Kevin Mitchell are all either attorneys from the
Public Defender's Office ("PDO") or private
attorneys who at one time or another defended Plaintiff in
the criminal proceedings (collectively referred to as
"PDO Defendants"). However, neither public
defenders nor private attorneys are state actors liable under
§ 1983, because they are not persons acting under the
color of law. See Vermont v. Brillon, 556 U.S. 81,
91 (2009) ("[T]he relationship between a defendant and
the public defender representing him is identical to that
existing between any other lawyer and client. Unlike a
prosecutor or the court, assigned counsel ordinarily is not
considered a state actor.") (citation and quotation
omitted); Rieco v. Hebe, No. 15-2323, 2015 WL
9583987, at *2 (3d Cir. Dec. 31, 2015) ("Public
defenders are generally not considered state actors for
§ 1983 purposes when acting in their capacities as
attorneys.") (quoting Polk Cty. v. Dodson, 454
U.S. 312, 325 (1981)); Jackson v. City of Erie Police
Dep't, 570 F.App'x 112, 113 (3d Cir. 2014)
("[P]rivate defense attorney cannot be construed as a
person acting under the 'color of state law' within
the meaning of § 1983") (citing Polk Cty.,
454 U.S. at 317-25); Bullock v. Shane Toyota, Inc.,
415 F.App'x 386, 389 (3d Cir. 2011) (private attorney not
liable under § 1983 because plaintiff has not set forth
any facts to demonstrate that her attorney was a state actor
or acted under color of state law). As such, all claims
against the PDO Defendants are dismissed prejudice, and the
PDO Defendants are dismissed from the case.
Defendants Darlene J. Pereksta and Thomas M. Brown are judges
who either presided or is presiding over Plaintiffs criminal
case. However, judges are absolutely immune from suit for
actions taken in their judicial capacity. Mireles v.
Waco, 502 U.S. 9, 11 (1991); Kaplan v. Miller,
653 F.App'x 87, 89 (3d Cir. 2016) ("[J]udges are
immune from suit under section 1983 for monetary damages
arising from their judicial acts.") (quoting Gallas
v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir.
2000)). "[J]udicial immunity is not overcome by
allegations of bad faith or malice, the existence of which
ordinarily cannot be resolved without engaging in discovery
and eventual trial." Mireles, 502 U.S. at 11.
Here, all of the allegations against Defendants Pereksta and
Brown are acts they have taken in their capacity as judges,
so they are immune from Plaintiffs claims. As such, all
claims against them are dismissed with prejudice, and they
are dismissed from the case.
vast majority of the claims of in the Complaint concern
Plaintiffs allegations that he was falsely accused and
prosecuted. The Court construes these claims against various
defendants as raising claims of malicious prosecution. To
state such a claim, Plaintiff is required to plead that
"(1) the defendant initiated a criminal proceeding; (2)
the criminal proceeding ended in plaintiffs favor; (3) the
proceeding was initiated without probable cause; (4) the
defendant acted maliciously or for apurpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept
of seizure as a consequence of a legal proceeding."
Kossler v. Crisanti, 564 F.3d 181. 186 (3d Cir.
2009) (en banc) (internal quotation marks omitted). Here, it
is clear from the Complaint that the criminal prosecution is
ongoing, therefore no outcome favorable to Plaintiff could
have occurred. Furthermore, with regard to Plaintiffs claims
against Defendants Laura Kotarba, Kathleen Petrucci, Skylar
Weissman, Stacey Guerds, Cyntha Liccardo, and Angelo J.
Onofri, prosecutors from the Mercer County Prosecutor's
Office, "[t]he arrest of a criminal defendant and the
filing of charges are at the core of the prosecutorial
function, and '[a] prosecutor is absolutely immune when
making [the decision to initiate a prosecution], even where
he acts without a good faith belief that any wrongdoing has
occurred.'" Munchinski v. Soloman, 618
F.App'x 150, 154 (3d Cir. 2015) (quoting Kulwicki v.
Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992)). Thus, the
Complaint fails to plead an essential element of the
malicious prosecution claims, and those claims are dismissed
from the case without prejudice.
Complaint also asserts that various defendants withheld
exculpatory evidence from Plaintiff. However, because the
omission of exculpatory evidence implicates a defendant's
right to fair trial, such omission is not a cognizable claim
under § 1983 unless the plaintiff has been
tried for a crime, and such trial implicates the
omission-without a trial, the concept of "exculpatory
evidence" would make no logical sense, and Plaintiff
would suffer no injury. See Anderson v. Venango Cty.,
Pa., 458 F.App'x 161, 164 (3d Cir. 2012) (finding
that to prevail on a § 1983 claim predicated on the
omission of evidence, "the plaintiff must show that the
government's alleged pretrial misconduct resulted in an
unfair trial, " so there can be no claim if the
plaintiff was never tried); cf. Renda v. King, 347
F.3d 550, 557 (3d Cir. 2003) ("[A] plaintiff may not
base a § 1983 claim on the mere fact that the police
questioned the plaintiff in custody without providing
Miranda warnings where there is no claim that the
statements obtained in violation of Miranda were
used against the plaintiff[.]"). As the Complaint
alleges that Plaintiff is a pretrial detainee, he has not
been tried for any crime as a result of the alleged omission.
Hence, Plaintiff fails to state a claim upon which relief may
be granted on his omission of evidence claims.
Complaint further asserts claims of conspiracy and fraudulent
concealment against various defendants, but those claims
consist of only conclusory allegations, without a single
factual allegation that would imply that such fraud claims
are plausible. Fraud claims are subject to the heightened
pleading requirements under Federal Rule of Civil Procedure
9(b), which the Complaint does not appear to meet.
Polhill v. FedEx Ground Package Sys., 604
F.App'x 104, 106 (3d Cir. 2015) ("Polhill would have
to comply with Rule 9(b)'s particularity requirement in
setting forth the alleged misconduct [of fraudulent
misrepresentation and concealment]."). For example,
Plaintiff alleges that "whatever secret plan they
prosecutor, judges, probation officer, and public defenders
came up with before I came in the court room was fraudulent
and also deceitful, with the intent to deceive me out of my
constitutional rights to liberty." ECF No. 1 at 27.
Essentially, Plaintiffs theory is that because he did not
understand what was going on, and bad things happened to him,
there must have been conspiracy and fraud. The Court will not
accept such conclusory allegations. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (holding that courts are
free to ignore factually unsupported accusations that merely
Accordingly, Plaintiffs conspiracy and fraudulent concealment
claims are dismissed without prejudice as unsupported by
plausible factual allegations. Defendants Laura Kotarba,
Kathleen Petrucci, Skylar Weissman, Stacey Guerds, Cyntha
Liccardo, and Angelo J. Onofri are dismissed from the case
now that all claims against them, based on the Court's
construction of the Complaint, have been dismissed.
remaining claims in the Complaint, including but not limited
to claims of false arrest, illegal seizure, denial of access
to the courts, and excessive force, are permitted to proceed.
Finally, the Court addresses Plaintiffs motion for bail
reduction, ECF No. 3. The Court construes the motion as
asserting that Plaintiffs bail, set by the state court, was
the relief Plaintiff seeks, a reduction of his bail, is
essentially a challenge to his current confinement, which
must be raised in a federal habeas petition, not in a civil
rights action. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973) ("[W]hen 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 ...