United States District Court, D. New Jersey
MEMORANDUM AND ORDER
L. Wolfson United States District Judge.
matter has been opened to the Court by Plaintiff's filing
of a pro se Complaint alleging violations of his
civil rights in connection with his criminal proceeding. (ECF
No. 1.) At this time, the Court will grant Plaintiff's
application to proceed in forma pauperis. (ECF No.
1-1.) As explained in this Memorandum and Order, the Court
will dismiss the Complaint pursuant to its screening
authority under 28 U.S.C. 1915(e)(2)(B), and provide
Plaintiff with 30 days in which to submit an amended
to the 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), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b),
or brings a claim with respect to prison conditions,
see 42 U.S.C. § 1997e. 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. “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. App'x 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000)); Mitchell v. Beard, 492 F. App'x 230, 232
(3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App'x 159, 162
(3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
Plaintiff's Complaint is subject to screening under 28
U.S.C. § 1915(e)(2)(B). When reviewing a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), courts first separate
the factual and legal elements of the claims, and accept all
of the well-pleaded facts as true. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All
reasonable inferences must be made in the plaintiff's
favor. See In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300, 314 (3d Cir. 2010). The complaint must also
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).
are required to liberally construe pleadings drafted by
pro se parties. Tucker v. Hewlett Packard,
Inc., No. 14-4699 (RBK/KMW), 2015 WL 6560645, at *2
(D.N.J. Oct. 29, 2015) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)). Such pleadings are “held to less
strict standards than formal pleadings drafted by
lawyers.” Id. Nevertheless, pro se
litigants must still allege facts, which if taken as true,
will suggest the required elements of any claim that is
asserted. Id. (citing Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)). To do
so, [a plaintiff] must plead enough facts, accepted as true,
to plausibly suggest entitlement to relief.” Gibney
v. Fitzgibbon, 547 Fed.Appx. 111, 113 (3d Cir. 2013)
(citing Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2012)). Furthermore, “[l]iberal construction does not,
however, require the Court to credit a pro se plaintiff's
‘bald assertions' or ‘legal conclusions.'
Id. (citing Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997)). That is,
“[e]ven a pro se complaint may be dismissed
for failure to state a claim if the allegations set forth by
the plaintiff cannot be construed as supplying facts to
support a claim entitling the plaintiff to relief.
Id. (citing Milhouse v. Carlson, 652 F.2d
371, 373 (3d Cir. 1981)).
Complaint, Plaintiff alleges that his signature was forged on
a request for a probable cause hearing brought by his
criminal attorney Brian White. (ECF No. 1, Complaint at 4-6.)
Plaintiff describes Defendant White as a “Pool
Lawyer[.]” (Id.) Plaintiff alleges that he did
not instruct Defendant White to bring the motion on his
behalf. (Id.) Plaintiff further alleges that
Defendant White told the judge presiding over Plaintiff's
criminal case that he did not know who forged the signature.
(Id.) Although the presiding judge told Defendant
White to investigate the matter, Defendant White allegedly
failed to do so. (Id.)
Court construes Plaintiff to seek relief pursuant to 42
U.S.C. § 1983. “To state a claim under §
1983, a plaintiff must allege a violation of a right secured
by the Constitution or laws of the United States committed by
a person acting under color of state law.” Mikhaeil
v. Santos, 646 Fed.Appx. 158, 161-62 (3d Cir. 2016)
(citing West v. Atkins, 487 U.S. 42, 48 (1988). It
is axiomatic that “[a] Section 1983 claim requires
state action.” McKinney v. Prosecutor's
Office, No. CIV. 13-2553 KM MCA, 2014 WL 2574414, at *8
(D.N.J. June 4, 2014). Here, Plaintiff alleges that Defendant
White is a public defender/pool attorney. To the extent
Plaintiff alleges that this Defendant provided ineffective
assistance of counsel to Plaintiff during pretrial
proceedings, Plaintiff's claim is subject to dismissal
because “ineffective assistance of appointed counsel in
representing a defendant is not actionable under §
1983.” Introcaso v. Meehan, 338
Fed.Appx. 139, 142 (3d Cir. 2009) (citing Polk County v.
Dodson, 454 U.S. 312, 324-25 (1981) (no state action for
the purposes of § 1983 where public defender represented
defendant in criminal matter)); see also Angelico v.
Lehigh Valley Hospital, Inc., 184 F.3d 268, 277 (3d Cir.
1999) (private attorneys were not acting under color of state
law when they issued subpoenas); Calhoun v. Young,
2008 WL 2944638 (3d Cir. Aug.1, 2008) (public defender
representing criminal defendant is not acting under color of
state law); Thomas v. Howard, 455 F.2d 228 (3d Cir.
1972) (court-appointed pool attorney does not act under color
of state law); Amponsah v. Boney, No. CIV.A. 08-4992
(MLC), 2008 WL 4754869, at *2-3 (D.N.J. Oct. 27, 2008)
(same). Likewise, Privately-retained counsel are not state
actors for purposes of § 1983. See Steward v.
Meeker, 459 F.2d 669 (3d Cir. 1972) (privately-retained
counsel does not act under color of state law when
representing client). Although private individuals may
nonetheless be liable under § 1983 if they have
conspired with or engaged in joint activity with state
actors, see Bierley v. Abate, 661 F. App'x 208,
209 (3d Cir. 2016) (citing Dennis v. Sparks, 449
U.S. 24, 27-28 (1980)), Plaintiff has not alleged in the
Complaint that Defendant White is a state actor or that he
engaged in a conspiracy or joint activity with any state
actors. For these reasons, the Court will dismiss without
prejudice the § 1983 claims against Defendant White.
respect to Defendant Caitlin Sidley, who is identified as a
prosecutor, Plaintiff alleges that on April 22, 2016, the
presiding judge in Plaintiff's criminal matter asked
Defendant Sidley why Plaintiff had not been indicted yet.
(ECF No. 1, Complaint at 4.) On April 25, 2016, Plaintiff
received the probable cause motion with the forged signature
in the mail. (Id. at 4-5.) Plaintiff provides no
other facts about Defendant Sidley's conduct. To the
extent Plaintiff alleges that this Defendant forged
Plaintiff's signature or otherwise colluded with
Defendant White to forge Plaintiff's signature, such
allegations are conclusory and unsupported by any
well-pleaded facts. The Court will therefore dismiss the
Complaint without prejudice as to Defendant Sidley.
extent Plaintiff can cure the deficiencies in his §1983
claims, he may submit an Amended Complaint within 30 days of
the date of this Memorandum and Order.
IS, THEREFORE, on this 28th day of November, 2017,
ORDERED that Plaintiff's application to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 (ECF No. 1-1) is hereby GRANTED; and it is
that the Complaint shall be filed; and it is further
that, pursuant to 28 U.S.C. § 1915(b) and for purposes
of account deduction only, the Clerk shall serve a copy of
this Order by regular mail upon the Attorney General of the
State of New Jersey and the Administrator of Mid-State
Correctional Facility; and it is further
that Plaintiff is assessed a filing fee of $350.00 and shall
pay the entire filing fee in the manner set forth in this
Order pursuant to 28 U.S.C. § 1915(b)(1) and (2),
regardless of the outcome of the litigation, meaning that if
the Court dismisses the case as a result of its sua
sponte screening, or Plaintiff's case is otherwise
administratively terminated or closed, § 1915 does not
suspend installment payments of the filing fee or permit
refund to the prisoner of the filing fee, or any part of it,
that has already been paid; and it is further
that pursuant to Bruce v. Samuels, 136 S.Ct. 627,
632 (2016), if Plaintiff owes fees for more than one court
case, whether to a district or appellate court, under the
Prison Litigation Reform Act (PLRA) provision governing the
mandatory recoupment of filing fees, Plaintiff's monthly
income is subject to a simultaneous, cumulative 20% deduction
for each case a court has mandated a deduction under the
PLRA; i.e., Plaintiff would be subject to a 40% deduction if