United States District Court, D. New Jersey
RICHARD L. SMITH, JR., Plaintiff,
MICHAEL DONIO, et al., Defendants.
Richard L. Smith, Jr.Pro se
L. HILLMAN U.S.D.J.
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.
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.
STANDARDS FOR A SUA SPONTE DISMISSAL
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.)
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
named the following defendants in his Complaint: Michael
Donio, J.S.C.; 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.
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
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.
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.
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 ...