Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Leith v. Weitz

United States District Court, D. New Jersey

May 24, 2018

SHIRLENE FOAT LEITH, Plaintiff,
v.
LIEUTENANT STEVE WEITZ et al., Defendants.

          OPINION

          FREDA L. WOLFSON UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Shirlene Foat Leith (“Foat Leith”), is a state prisoner, presently incarcerated at the Edna Mahan Correctional Facility, in Clinton, New Jersey. She is proceeding pro se with an Amended Complaint asserting claims under 42 U.S.C. § 1983. (ECF No. 18.) Presently before the Court is a motion by Foat Leith for default judgment against defendant Detective Dean Dakin (“Dakin”), (ECF No. 28), a motion by Dakin to vacate an entry of default and to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(2), (4), (5), and (6), (ECF No. 30), a motion by defendant Lieutenant Steve Weitz (“Weitz”) to dismiss the Amended Complaint under Rule 12(b)(6), (ECF No. 45), a request by Foat Leith that the Court construes as a motion to disqualify Weitz's counsel, (ECF No. 48 at 5), and a motion by Foat Leith for appointment of pro bono counsel, (ECF No. 50). For the following reasons, the entry of default against Dakin is vacated, the motion for default judgment is denied, the motions for dismissal are granted in part, insofar as the claims for malicious prosecution and conspiracy are dismissed, and the remaining portions of the motions are denied, likewise, the request for disqualification of counsel is denied, and the motion for appointment of pro bono counsel is denied. Furthermore, the Court grants Dakin and Weitz (collectively, “Defendants”) leave to file motions for summary judgment on the issue of whether Foat Leith's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).

         II. BACKGROUND

         A. Underlying Circumstances

         The facts underlying this case are contested, but Foat Leith alleges that they occurred as follows. She represents that, at around 7:40 p.m., on October 4, 2013, she was walking down Suydam Street, in New Brunswick, New Jersey, having just purchased several bottles of perfume, when her shopping bag broke, spilling the contents on the ground. (Compl., ECF No. 1, ¶ 6.) Foat Leith explains that she placed her black pocket book and other belongings on a wall to clean up the contents of her shopping bag. (Id.) Foat Leith asserts that non-party Tanya Denson, then approached, identified a gray pocket book sitting on the same wall as hers, and offered to help Foat Leith pick up her things. (Id.) As Tanya Denson and Foat Leith stood there, she alleges that officers with the New Brunswick Police Department, including Detective Dakin, arrived in a vehicle and placed them both in handcuffs. (Id.)

         Foat Leith alleges that she was then placed in a police car, but that when her boyfriend arrived around the same time, he saw Dakin go through Foat Leith's pocket book and find nothing of interest. (ECF No. 1-1, at 1.) Meanwhile, other police officers also detained Tanya Denson's brother, non-party Leonard Denson, who apparently began running away when police arrived. (Id.) Foat Leith claims that Tanya Denson later admitted that Leonard Denson had 20 “decks” of heroin in his hand and another 50 in his anal cavity. (Id.) Foat Leith alleges that Leonard Denson then directed the officers to a “stash can” in a black bag, which contained additional drugs. (Id.) Tanya Denson was released, but Foat Leith was taken to the Middlesex County Jail and charged with dealing drugs. (Id.) Foat Leith was ultimately convicted and sentenced to ten years in prison, with five years of parole ineligibility. (Id.)

         B. The Complaint

         Foat Leith commenced this action on October 1, 2015 and alleged claims for violations of her constitutional rights, under 42 U.S.C. § 1983, against the Middlesex County Prosecutor's Office, the Somerset County Prosecutor's Office, the New Brunswick Police Department, Weitz, and Dakin. (See ECF Nos. 1 & 1-1.) Foat Leith alleges that all of the defendants participated in a conspiracy to subject her to malicious prosecution. (ECF No. 1 ¶ 7.) She specifically alleges that Weitz conspired to charge her without supporting evidence, tampered with the evidence in her case, and perjured himself during trial and pretrial hearings. (Id. ¶ 4(b).) She asserts that Dakin falsely arrested her, verbally abused her, and participated in the malicious-prosecution conspiracy by providing false testimony to the grand jury. (Id. ¶ 4(c).) She insists that no one saw her engaged in any unlawful conduct prior to her arrest, that her fingerprints were not found on any of the evidence, and that she was carrying a large amount of money to use as a deposit for a new apartment the next day. (ECF No. 1-1 at 1-2.) As relief, Foat Leith sought compensatory damages of $25 million, punitive damages of $5 million, and the review and dismissal of her criminal case. (ECF No. 1 ¶ 7.)

         This Court granted Foat Leith leave to proceed in forma pauperis, but Magistrate Judge Lois H. Goodman terminated an initial motion for appointment of pro bono counsel as premature.[1] (ECF Nos. 1-2, 2, 3, & 4.) Upon conducting an initial screening of the Complaint, under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court construed it as asserting claims for conspiracy, Fourth Amendment violations, malicious prosecution, and giving false testimony. (Op., ECF No. 5, at 6.) The Court then dismissed with prejudice all claims against the Middlesex County Prosecutor's Office, the Somerset County Prosecutor's Office, and the New Brunswick Police Department, as they are not susceptible to suit under § 1983. (Id. at 6-8.) The Court further dismissed Foat Leith's claims to the extent they sought to invalidate her conviction, noting that such relief may only be sought in federal court by way of a petition for writ of habeas corpus. (Id. at 8-9.) Examining the Complaint's remaining substantive allegations, the Court dismissed, for failure to state a claim, the claims for conspiracy, malicious prosecution, and presenting false testimony, but permitted the Fourth Amendment claims, for unlawful detention or false arrest, false imprisonment, and unlawful search, to proceed. (Id. at 10-17; Order, ECF No. 6.) The Court granted Foat Leith leave to amend those claims that were dismissed for failure to state a claim. (ECF No. 5 at 10-17; ECF No. 6.)

         The clerk issued Foat Leith copies of U.S. Marshals Service Form 285 for service of process. (ECF No. 7). Foat Leith submitted completed forms to the Marshals Service on July 25, 2016, and the Court issued a summons for each defendant the same day. (ECF Nos. 8 & 9.) The Marshals Service filed Process Receipt and Return forms on August 8, 2016, indicating that both Weitz and Dakin were served on August 3, 2016. (ECF Nos. 12 & 13.) On August 12, 2016, however, the Middlesex County Prosecutor's Office filed a letter with the Court indicating that it had erroneously accepted service on behalf of Weitz, as he had previously retired. (ECF No. 16.) After employing procedures to inform the Marshal's Service of Weitz's home address, proper service was eventually completed on June 20, 2017. (See ECF Nos. 20, 22, 23, 24, 32, 33, & 35.)

         C. The Amended Complaint

         Meanwhile, Foat Leith filed an Amended Complaint, presently the operative pleading, on September 7, 2016, impleading as defendants Weitz and Dakin, as well as “John Doe's to Be Name Later.” (Am. Compl., ECF No. 18.) The Amended Complaint alleges that Weitz

[f]acilitated a conspiracy to charge me with crimes he new [sic] i did not commit by tampering with evidence at the crime scene to frame me and to bloster [sic] the case to cover his crimes[;] made up the story that he saw me throw a black bag when all the other detective said i did not move[;] had me arrested with out any knowledge a crime was committed or about to be committed.

(Id. ¶ 4(b).) She claims that Dakin

arrested me with out any knowledge a crime had been commited [sic][;] told me to shut the fuck up black bitch when I told my friend I was being detained[;] had me removed from the crime scene in handcuffs with out any other justifiable reason to violate my constitutional rights afforded me in the U.S. Constitution.

(Id. ¶ 4(c) (capitalization rectified).) Foat Leith asserts that there must have been a conspiracy to charge her because various witnesses saw Leonard Denson throw a bag to the ground as he ran from police and otherwise contradicted police testimony during her trial, and because “Weitz knew she could not defend her self with her past.” (Id. ¶ 6.) Foat Leith seeks $10 million in compensatory damages, unspecified punitive damages, and that she be given “her day in court so that [Weitz] and [Dakin] can be held accountable for the unjustifiable criminal babaric [sic] behavior they participated in.” (Id. ¶ 7.) Foat Leith included with her Amended Complaint several investigation reports generated by the Office of the Public Defender, which summarize interviews with witnesses of her arrest. (Id. Exs.)

         D. Subsequent Procedure and Motion Practice

         On March 20, 2017, as Dakin had not yet entered an appearance in this case, Foat Leith filed a request for entry of default against him, which was entered on March 27, 2017. (ECF No. 26.) Foat Leith then filed, on June 2, 2017, a motion for default judgment against Dakin in the amount of $100, 000, plus interest and costs.[2] (ECF No. 28.) Shortly thereafter, Dakin filed an opposition and a cross-motion to vacate the entry of default against him, asserting that he had never been properly served with the Summons and Complaint. (ECF Nos. 30 & 34.) Dakin further sought dismissal of the action for improper service of process, under Federal Rule of Civil Procedure 12(b)(2), (4), and (5), and for failure to state a claim, under Rule 12(b)(6). (ECF Nos. 30 & 34.)

         On September 20, 2017, Judge Goodman sua sponte appointed Foat Leith pro bono counsel for the sole purpose of representing her during a settlement conference. (ECF No. 41.) An unsuccessful telephonic settlement conference occurred on October 30, 2017, and Foat Leith's limited pro bono counsel thereafter withdrew representation. (ECF No. 47.)

         Meanwhile, on October 16, 2017, defendant Weitz also filed a motion to dismiss the Amended Complaint for failure to state a claim, under Rule 12(b)(6). (ECF No. 45.) Foat Leith filed an opposition to Weitz's dismissal motion, in which she also requested “a hearing for the attorney general to recuse themselves from representing Steven Weitz as we plan to call this office as a witness.” (ECF No. 48).

         Thereafter, Foat Leith additionally filed a motion for the appointment of pro bono counsel. (ECF No. 50.) Dakin and Weitz both oppose the appointment of pro bono counsel. (ECF Nos. 51 & 52.)

         III. MOTIONS CONCERNING DAKIN'S DEFAULT

         The Court first addresses Dakin's motion to vacate the entry of default against him and Foat Leith's motion for default judgment. Under Federal Rule of Civil Procedure 55, the Court “may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c); see also Mrs. Ressler's Food Prods. v. KZY Logistics, LLC, 675 Fed.Appx. 136, 139 (3d Cir. 2017). In considering whether to vacate default, a court should consider (1) whether the plaintiff will be prejudiced by a vacatur of default, (2) whether the defendant has a meritorious defense, and (3) whether the defendant's culpable conduct led to the entry of default. See Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d Cir. 1982); see also Sourcecorp Inc. v. Croney, 412 Fed.Appx. 455, 459 (3d Cir. 2011). Vacatur of a mere entry of default requires a less substantial showing than vacatur of a default judgment. See Feliciano, 691 F.2d at 656.

         Dakin asserts that, while default was entered against him on March 27, 2017, he had never received proper service of process and did not learn of the action until June 8, 2017. (ECF No. 34 at 3-4.) He alleges that the Summons and Complaint intended for him was erroneously served upon the Middlesex County Prosecutor's Office, instead of his employer, the New Brunswick Police Department. (Id.) Dakin argues that Foat Leith will suffer no prejudice from vacatur of the default, that he has a meritorious defense, as the action should be barred by Heck v. Humphrey, and that he was not culpable for the default. In fact, Dakin claims that he filed his motion to vacate shortly after learning the case exited. (Id. at 5-8.)

         Dakin's argument that the Summons and Complaint were served upon the wrong office is contradicted by the Process Receipt and Return filed by the Marshals Service, which indicates that service was to be made upon the New Brunswick Police Department and that, on August 3, 2016, the Summons and Complaint was served on a “Lt. Goldeski, badge #4231.”[3] (ECF No. 13.) Nonetheless, vacatur of the entry of default still appears warranted. The case is still in its early stages-there has been no discovery and no defendant has yet filed an answer-thus indicating that Foat Leith will suffer little or no prejudice by permitting Dakin to join the litigation. Indeed, that the Amended Complaint lists as additional defendants “John Doe's to Be Name Later” suggests that she may be contemplating adding new defendants to the case herself. Furthermore, Dakin does assert a potentially meritorious defense, namely the argument that the case is barred by Heck v. Humphrey. Dakin's role in his apparent failure to receive service of process is unclear, but he has acted promptly in seeking to vacate the entry of default. Applying these considerations identified by the Third Circuit, Feliciano, 691 F.2d at 656, the Court finds good cause under Rule 55 to vacate the entry of default against Dakin. As a result, Foat Leith's motion for default judgment is denied.

         IV. THE DISMISSAL MOTIONS

         A. Dismissal for Improper ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.