United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.
this Court is pro se pre-trial detainee Timothy
Lewis's (“Plaintiff”) Amended Complaint,
filed pursuant to 42 U.S.C. § 1983. (ECF No. 6.) On
August 2, 2018, the Court entered an Opinion and Order
dismissing Plaintiff's initial Complaint (ECF No. 1) for
failure to state a claim upon which relief may be granted but
gave Plaintiff leave to file an amended complaint (ECF Nos.
4, 5). His Amended Complaint is currently before this Court
for screening pursuant to 28 U.S.C. §§ 1915, 1915A.
Amended Complaint, Plaintiff again names his court-appointed
private attorney, Michael B. Roberts, and John H. Johnson,
Supervisor of the Public Defenders Office, as defendants.
(Am. Compl. ¶ 4.) With regards to Defendant Roberts, he
is allegedly “in collusion with the Criminal Court
Middlesex County Superior Division and he is violating
[Plaintiff's] rights by not allowing [him] to represent
[himself].” (Compl. ¶ 4(b).) He further
alleges Defendant Roberts “conspired with various state
officials, including with the trial court judge and with [an]
assistant prosecutor in the Middlesex County Prosecutors
Office of New Jersey to secure Plaintiff's
conviction.” (Am. Compl. ¶ 6.) Defendant Johnson
is allowing Defendant Roberts to prevent Plaintiff from
representing himself in his criminal proceeding.
(Id. ¶ 4(c).) Plaintiff is seeking injunctive
relief in the form of dismissal of the charges and a
temporary restraining order against Defendant Roberts because
he is “scared of him.” (Am. Compl. ¶ 6.)
Plaintiff is also seeking monetary damages. (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), 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. 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 prisoner who is proceeding as indigent.
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.” Belmont v. MB Inv.
Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(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
plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, the
alleged deprivation was committed or caused by a person
acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011).
the allegations in Plaintiff's Amended Complaint are
nearly identical to the allegations contained in his initial
Complaint. As the Court previously informed him, his claims
against Defendants Roberts and Johnson are subject to
dismissal because neither public defenders nor private
attorneys are “state actors” under § 1983.
See Vermont v. Brillon, 556 U.S. 81, 91 (2009)
(“[T]he relationship between a defendant and the public
defender representing him is identical to that existing
between any other lawyer and client. Unlike a prosecutor or
the court, assigned counsel ordinarily is not considered a
state actor . . . .”)(citation and quotation omitted);
Walker v. Pennsylvania, 580 Fed.Appx. 75, 78 (3d
Cir. 2014) (finding public defenders and private attorneys
are not state actors when acting as defense counsel and
“are absolutely immune from civil liability under
§ 1983” for actions taken in that capacity). More
specifically, “a public defender does not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding.” Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981); see also Carter v. Kane, No.
17-3026, 2017 WL 6523355, at *2 (3d Cir. Dec. 21, 2017). The
allegations against these individuals are in their capacity
as counsel to a defendant in a criminal proceeding. Thus,
Plaintiff has not satisfied the “under color of state
law” element of § 1983.
Court also previously advised him, where a public defender
conspires with the State to deprive an individual of his
rights, the public defender is not immune from civil
liability under § 1983. See Tower v. Glover,
467 U.S. 914, 916-20 (1984) (finding a public defender who
allegedly conspired with judges and the state attorney
general to obtain the criminal defendant's conviction was
acting under color of state law); Bierley v. Abate,
661 Fed.Appx. 208, 209 n.3 (3d Cir. 2016) (noting
“private individuals may nonetheless be liable under
§ 1983 if they have conspired with or engaged in joint
activity with state actors”). In order to plead
conspiracy under § 1983, a plaintiff must “provide
some factual basis to support the existence of the elements
of a conspiracy: agreement and concerted action.”
Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 185 (3d Cir. 2009). A bare allegation of an
agreement is insufficient to sustain a conspiracy claim.
See Brown v. Deparlos, 492 Fed.Appx. 211, 215 (3d
it is not clear, Plaintiff appears to argue Defendants and
the state court and/or prosecutors entered into a conspiracy
to convict him, thereby rendering Defendants “state
actors.” (Am. Compl. at 109.) But he provides no facts
to support such an allegation. See Twombly, 550 U.S.
at 556-57 (noting that, at the pleading stage, “an
allegation of parallel conduct and a bare assertion of
conspiracy will not suffice. Without more, parallel conduct
does not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply facts
adequate to show illegality”); Himchak v. Dye,
684 Fed.Appx. 249, 253 (3d Cir. 2017) (conclusory allegations
of conspiracy are not sufficient to plead a claim these
attorneys conspired with any state actors); Kennedy v.
City of Philadelphia, 749 Fed.Appx. 90, 94 (3d Cir.
extent he is suggesting Defendants and the state court
conspired to prevent Plaintiff from representing himself,
again, he provides no facts. Id. To the contrary,
the exhibits he provides from the state criminal proceedings
show Defendant Roberts in fact filed a motion on
Plaintiff's behalf seeking permission to allow Plaintiff
to proceed pro se, which the court granted. (ECF No.
6 at 33-36.) Though the court thereafter rescinded its order
due to Plaintiff's behavior, it is clear from the
transcript Defendant Roberts did not conspire with the court
for such a result, as Defendant Roberts actually objected to
being reassigned as Plaintiff's counsel. (Motion Hearing
Transcript 50:1-51:10, June 19, 2018, ECF No. 6 at 76.)
short, Plaintiff has alleged no facts which would suggest a
conspiracy between Defendants and a state actor; as a result,
Defendants were not acting “under color of state
law” pursuant to § 1983.
for the reasons stated herein and in the Court's prior
Opinion and Order, the Amended Complaint is dismissed without
prejudice in its entirety pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A for failure to state a claim upon
which relief may be granted. In light of his pro se
status, the Court will grant Plaintiff a final opportunity to
move to re-open this case and to file a second ...