United States District Court, D. New Jersey
KEITH H. DRAKE, Plaintiff,
GERALD M. SALUTI, et al., Defendants.
Susan D. Wigenton, United States District Judge
before the Court is the complaint of Plaintiff, Keith H.
Drake. (ECF No. 1). Also before this Court is Plaintiff's
application to proceed in forma pauperis. (Document
1 attached to ECF No. 1). Based on Plaintiff's
application, it is clear that leave to proceed in forma
pauperis is warranted in this matter, and therefore this
Court will grant Plaintiff's application to proceed
in forma pauperis. Because this Court is granting
that application and because Plaintiff is a state prisoner
suing state employees, however, this Court is required to
screen the complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A. Pursuant to these statutes, this
Court must dismiss Plaintiff's claims if they are
frivolous, malicious, fail to state a claim for relief, or
seek damages from a defendant who is immune. For the reasons
set forth below, this Court will dismiss the complaint in its
complaint, Plaintiff alleges that, in 2007, he was convicted
of second-degree sexual assault in violation of N.J. Stat.
Ann. § 2C:14-2(c)(1). (ECF No. 1 at 4). At sentencing
for that offense in March 2007, the prosecutors argued, and
defense counsel apparently agreed, that Petitioner was
subject to the terms of the No Early Release Act
(“NERA”), N.J. Stat. Ann. § 2C:43- 7.2,
which imposes a period of parole ineligibility equal to
eighty-five percent of a criminal defendant's sentence
where he is convicted of certain enumerated first and second
degree offenses, including “subsection b. of [N.J.
Stat. Ann. §] 2C:14-2 and paragraph (1) of subsection c.
of [N.J. Stat. Ann. §] 2C:14-2, sexual assault.”
N.J. Stat. Ann. § 2C:43-7.2(d)(8). The sentencing judge
therefore found Petitioner subject to NERA, and sentenced
Petitioner to an appropriate period of parole ineligibility
in imposing sentence for Petitioner's sexual assault
conviction. (ECF No. 1 at 4). Petitioner appealed, but did
not challenge his NERA sentence on appeal. (Id. at
4-5). When Petitioner complained about counsel's failure
to raise a challenge to the NERA sentence, counsel responded
by telling Petitioner that he had been sentenced correctly
under NERA. (Id. at 5).
apparently sought relief from his sentence from the state
parole board, but was told that only the courts could grant
him relief. (Id.). Petitioner also filed motions or
petitions for several forms of post-conviction relief,
ultimately culminating in a motion to correct an illegal
sentence in which he argued that his NERA sentence was
improper. (Id.). That motion was denied.
(Id.). Petitioner appealed, and the Superior Court
of New Jersey - Appellate Division affirmed the denial of his
motion, explaining as follows:
Under the plain language of [N.J. Stat. Ann. §]
2C:43-7.2, NERA applies to second-degree sexual assault under
[N.J. Stat. Ann. §] 2C:14-2(c)(1). Subsection a. of
[N.J. Stat. Ann. §] 2C:43-7.2 requires that “[a]
court imposing a sentence of incarceration for a crime of the
first or second degree enumerated in subsection d. of this
section shall fix a minimum term of 85% of the sentence
imposed, during which the defendant shall not be eligible for
parole.” Subsection b. similarly requires that
“[t]he minimum term required by subsection a. of this
section shall be fixed as a part of every sentence of
incarceration imposed upon every conviction of a crime
enumerated in subsection d. of this section[.]” [N.J.
Stat. Ann. §] 2C:43-7.2(b)[.] Subsection d. requires
that “[t]he court shall impose sentence pursuant to
subsection a. of this section upon conviction of the
following crimes or an attempt or conspiracy to commit any of
these crimes[.]” [N.J. Stat. Ann. §]
2C:43-7.2(d)[.] Among the “following crimes”
“enumerated in subsection d.” is “paragraph
(1) of subsection c. of [N.J. Stat. Ann. §] 2C:14-2,
sexual assault[.]” [N.J. Stat. Ann. §]
2C:43-7.2(d)(8). Because [N.J. Stat. Ann. §]
2C:14-2(c)(1) is “a crime of the ... second degree
enumerated in subsection d., ” NERA applies. [N.J.
Stat. Ann. §] 2C:43-7.2(a), (b), (d).
State v. Drake, 132 A.3d 1270, 1274-75 (N.J. App.
Div. 2016). The Appellate Division went on to reject
Plaintiff's argument that NERA would only apply to a
second-degree sexual assault where there was a violation of
both “subsection b. of [N.J. Stat. Ann. §] 2C:14-2
and paragraph (1) of subsection c. of [N.J. Stat. Ann.
§] 2C:14-2, ” instead finding that, based upon the
legislature's intent, the statute merely laid out in
section (d)(8) both forms of second degree sexual assault
which individually would require a NERA sentence.
Id. at 1275-82.
current complaint, Plaintiff contends that NERA is
“unconstitutionally vague, ” and that his
sentence is therefore illegal. Plaintiff therefore seeks to
bring claims for denial of his rights leading to his
incarceration against several judges, prosecutors, and
defense attorneys involved in his case who either imposed,
sought to impose, or failed to oppose Petitioner's NERA
sentence. (ECF No. 1 at 4-6). Petitioner also names as a
Defendant the New Jersey Parole Board, apparently for failing
to provide him relief when he sought to have the Board undo
his NERA sentence. (Id.).
Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996) (“PLRA”), district courts must review
complaints in those civil actions in which a prisoner is
proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), or seeks damages from a state employee,
see 28 U.S.C. § 1915A. The PLRA directs
district courts to sua sponte dismiss any claim that
is frivolous, is 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. This action is
subject to sua sponte screening for dismissal under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A because
Plaintiff is a state prisoner seeking damages from state
officials who has been granted in forma pauperis
to the Supreme Court's decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'” 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To survive sua
sponte screening for failure to state a claim, the
complaint must allege “sufficient factual matter”
to show that the claim is facially plausible. Fowler v.
UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(citation 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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege
sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
in his complaint, seeks to raise claims against the Parole
Board, judges, prosecutors, private defense attorneys, and
public defenders, for alleged violations of his
constitutional rights pursuant to 42 U.S.C. § 1983.
“To establish a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a violation of a right protected
by the Constitution or laws of the United States that was
committed by a person acting under the color of state
law.” Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000); see also Woodyard v. Cnty. of Essex, 514
F.App'x 177, 180 (3d Cir. 2013) (section 1983 provides
“private citizens with a means to redress violations of
federal law committed by state [actors]”). “The
first step in evaluating a section 1983 claim is to
‘identify the exact contours of the underlying right
said to have been violated' and to determine
‘whether the plaintiff has alleged a deprivation of a
constitutional right at ...