United States District Court, D. New Jersey
Hennessey, # 255009 Atlantic County Justice Facility
Plaintiff Pro se
L. HILLMAN, U.S.D.J.
Frank Hennessey, an inmate presently incarcerated at the
Atlantic County Justice Facility in Mays Landing, New Jersey,
seeks to bring a civil rights action pursuant to 42 U.S.C.
§ 1983 against the Atlantic Office of the Public
Defender. ECF No. 1. The Complaint also references public
defenders Robert Moran, Kevin Moses, Holly Bitters, and
Kimberly Schultz (the “Individual Defendants”);
it is unclear whether Plaintiff seeks to assert claims
against them but the Court will liberally construe the
Complaint as seeking to assert claims against them
time, the Court must review Plaintiff's Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) 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. For the reasons set
forth below, the Court will dismiss the Complaint without
prejudice with leave to amend. 28 U.S.C. §§
1915(e)(2)(b)(ii) and 1915A(b)(1).
filed the Complaint on November 17, 2017. ECF No. 1. In it,
Plaintiff asserts that his due process rights have been
violated by Defendants. Compl. ¶ 1a. Specifically,
Plaintiff generally complains of the quality of
representation he has received by Defendants, noting that
“no progress” has been made in his case and he is
still in custody. Id. at 4-5. Plaintiff asserts that
Defendants are wrongly preoccupied with coercing guilty pleas
rather than acting in their clients' best interests.
Id. at 8. Plaintiff also asserts that the Defendants
have not provided him with “full discovery
disclosure” or an opportunity to review surveillance
footage of Plaintiff's alleged offense. Id. at
11-12. In addition, Plaintiff claims that the plea deal
offered to him was relayed to him by Defendant Schultz and
not by a prosecutor or in writing. Id. at 12.
Plaintiff asserts that he has requested numerous hearings
such as a probable cause hearing and a suppression hearing
but that Defendants have ignored his requests. Id.
also states in the Complaint that he wishes to
“collaterally attack” the manner by which the
State of New Jersey, Superior Court Criminal Division
Authorities, State of New Jersey County of Atlantic Office of
the Prosecutor, Criminal Case Managers, and the Atlantic
County Jail Administrators have “significantly
crippled, distort, and or block/out” his ability to
review evidentiary proofs such as investigatory results,
notations, police reports, lab testing, statements and other
material based on defective and deficient procedural
policies. Id. at 20. Finally, Plaintiff also appears
to assert a class action claim on behalf of “all
enjoining (class status) parties” as to the mode by
which discovery is disclosed to defendants in Atlantic
County, some of whom are not literate or computer literate.
Id. at 21-23.
effort to informally resolve his grievance, Plaintiff has
exchanged multiple letters and engaged in numerous
conferences with various public defenders at the Office
including the Office's Department Head, Robert Moran.
Id. ¶ 5.
1915(e)(2) and 1915A require a court to review complaints
prior to service in cases in which a plaintiff is proceeding
in forma pauperis and in which a plaintiff is
incarcerated. The Court must 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 proceeding in forma pauperis and is
also incarcerated. See ECF No. 3 (granting in
forma pauperis application).
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. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). “‘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 Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “[A] pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
DISCUSSION Plaintiff's Complaint must be
dismissed for failure to state a claim upon which relief may
be granted. In order to state a claim pursuant to 42 U.S.C.
§ 1983, the plaintiff must show that “‘(1)
the conduct complained of was committed by a person acting
under color of state law; and (2) that the conduct deprived a
person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.'”
Calhoun v. Young, 288 Fed.Appx. 47, 49 (3d Cir.
2008) (quoting Robb v. City of Phila., 733 F.2d 286,
290-91 (3d Cir. 1984)).
fails to state a claim as to the Individual Defendants
because a public defender acts outside the color of state law
when he or she is performing a lawyer's traditional
functions as counsel to a defendant. Calhoun, 288
Fed.Appx. at 49 (citing Polk County v. Dodson, 545
U.S. 312, 325 (1981)). Plaintiff makes no allegation that the
Individual Defendants were acting in any way other than
performing a lawyer's traditional functions as counsel to
him. As such, the Individual Defendants must be dismissed.
Such dismissal, however, will be without prejudice and leave
Atlantic Office of the Public Defender must also be dismissed
because it is immune from suit. The Eleventh Amendment
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or ...