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Smith v. Donio

United States District Court, D. New Jersey

April 3, 2017

RICHARD L. SMITH, JR., Plaintiff,
v.
MICHAEL DONIO, et al., Defendants.

          Richard L. Smith, Jr.Pro se

          OPINION

          NOEL L. HILLMAN U.S.D.J.

         Plaintiff Richard L. Smith, a prisoner confined at Southern State Correctional Facility in Delmont, New Jersey, seeks to bring this civil rights action in forma pauperis. (Compl., ECF No. 1.) Based on his affidavit of indigence, the Court will grant Plaintiff's application to proceed in forma pauperis (“IFP App., ” ECF No. 1-2), pursuant to 28 U.S.C. § 1915(a), and order the Clerk of the Court to file the Complaint.

         At this time, the Court must review the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) 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.

         I. STANDARDS FOR A SUA SPONTE DISMISSAL

         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). “To survive a motion to dismiss, a 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. (quoting Twombly, 550 U.S. at 556.)

         “[A] court must accept as true all of the allegations contained in a complaint.” Id. A court need not accept legal conclusions as true. Id. Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id. Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. If a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). A court must liberally construe a pro se complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         II. DISCUSSION

         A. The Complaint

         Plaintiff named the following defendants in his Complaint: Michael Donio, J.S.C.;[1] Andrew B. Johns, Assistant Attorney General (“AAG”), New Jersey; Joseph Corbey, Attorney; Terry Stomel, Attorney; Georgia Curio, Cumberland County Assignment Judge; and Rosemarie Gallager, C.D.M., Cumberland County. In his Statement of Claims, Plaintiff alleges the following facts. On September 5, 2012, Plaintiff and his wife were arrested. Plaintiff was arraigned before Judge Michael Donio on September 17, 2012. Andrew B. Johns acted on behalf of the New Jersey Attorney General's Office, and Attorney Joseph Corbey represented Plaintiff. Bail was not discussed or set at the arraignment.

         Plaintiff's criminal matter before Judge Donio, and two other indictments against him, were transferred to Cumberland County on October 9, 2012, due to a conflict because Plaintiff's father-in-law is a judge in Atlantic County. Plaintiff did not receive bail until he agreed to plead guilty on April 29, 2013. His bail was set at $150, 000, and subsequently lowered to $100, 000 at his plea hearing. AAG Andrew Johns admitted on the record that a mistake was made in Plaintiff's bail.

         Before his plea hearing, between September 17, 2012 and April 29, 2013, Plaintiff wrote letters to his attorney, Joseph Corbey, and to Judges Michael Donio and Georgia Curio, alleging he was illegally imprisoned. He also submitted a motion to dismiss in January 2013. These issues went unaddressed.

         Plaintiff was appointed a “pool attorney, ” Terry Stomel, on April 29, 2013. Stomel procured Plaintiff's bail, and allowed Plaintiff to plead guilty. Plaintiff alleges Stomel had not read the discovery, and it was obvious to Stomel that Plaintiff was “held illegally of an apparent conspiracy.” (Compl., ECF No. 1 at 7.) Plaintiff was forced to plead guilty to have his wife's charges dismissed. He could not post bail because there was a hold on him in Mercer County.

         Plaintiff alleges his father-in-law dislikes him and is friends with “the very judges who failed to set a bail for me and also worked as an Assistant Attorney General for the [AG's] Office.” (Id.) Plaintiff attempted to file a civil action on December 21, 2013, but after learning that ...


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