NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AUDREY CARTER, : 

 : Civil Action No. 11-439(FLW)

Plaintiff, : 

 :

 :

v. : OPINION

 :

STATE OF NEW JERSEY, et al., :

 :

Defendants. :

APPEARANCES:

AUDREY CARTER, Plaintiff pro se

1701 Salem Road, Apt. N-12

Burlington, New Jersey 08106

LUANH LLOYD D’MELLO, ESQ.

OFFICE OF THE NJ ATTORNEY, STATE OF NEW JERSEY

DIVISION OF LAW

25 West Market Street, P.O. Box 112

Trenton, New Jersey 08625

Counsel for Defendants, the State of New Jersey and Paula

Dow

ROCKY LEE PETERSON, ESQ.

HILL WALLACK, LLP

202 Carnegie Center, CN 5226

Princeton, New Jersey 08543-5226

Counsel for Defendants Mercer County Prosecutor’s Office and

Assistant Prosecutor John Jingoli

WOLFSON, District Judge

Plaintiff Audrey Carter (hereinafter “Plaintiff”), brings

this action in forma pauperis. The Court has considered

Plaintiff’s application for indigent status in this case and

concludes that she is permitted to proceed in forma pauperis

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without prepayment of fees or security thereof, in accordance

with 28 U.S.C. § 1915(a). However, having reviewed the

Complaint, filed on January 21, 2011, and the amended Complaint,

filed on January 24, 2011, pursuant to 28 U.S.C. § 1915(e)(2),

and for the reasons set forth below, this Court finds that this

action should be dismissed for failure to state a claim upon

which relief may be granted, pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii).

On May 24, 2011, defendant Mercer County Prosecutor’s Office

filed a motion to dismiss this action pursuant to Fed.R.Civ.P.

12(b)(6). Because the Court has screened this action, sua

sponte, pursuant to 28 U.S.C. § 1915(e)(2), and has determined

that the matter should be dismissed for failure to state a claim,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as set forth below,

defendant’s motion is hereby rendered moot.

BACKGROUND

On September 1, 2009, this Court ordered that Plaintiff “is

barred and enjoined from filing any document or pleading of any

kind with the Court as a pro se litigant, except in pending

litigation, unless Plaintiff (1) first seeks leave of the Court

granting Plaintiff written permission to file any such document

or pleading and (2) a Judge of the Court grants Plaintiff leave

to file such document or pleading.” Carter v. New Jersey State,

et al., Civil No. 09-3704 (FLW)(Docket entry no. 6). Further, in

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its September 1, 2009 permanent injunction, the Court established

that it would consider granting such approval only if Plaintiff

submits to the Court a certification taken under oath stating:

“(1) that the complaint is not frivolous or vexatious, nor

repetitive or violative of a court order, (2) that all claims

presented have never been raised in this Court before and

disposed of on the merits, and that it is not barred by

principles of claim or issue preclusion, (3) that the proposed

filing can survive a challenge under Fed.R.Civ.P. 12, (4) that

all facts alleged in the complaint are believed to be true by

Plaintiff, (5) that Plaintiff has no knowledge or belief that her

claims are for any reason foreclosed by controlling law, and (6)

that the pleading is in compliance with Fed.R.Civ.P. 11.” (Id.) 

In the instant matter, Plaintiff submitted her Complaint and

amended Complaint for filing without complying with this Court’s

September 1, 2009 Order. In particular, Plaintiff brings this

action asserting that her civil rights were violated and seeking

monetary damages based on general claims of gender, race and

disability-based discrimination by the following defendants: the

State of New Jersey; Attorney General of New Jersey Paula Dow;

the Trenton Public Defender’s Office; the Mercer County

Prosecutor’s Office; Attorney Steve Hallett; Prosecutor Bert

Scott; Judge Williams; Public Defender Supervisor Vernon Clash;

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and Prosecutor Supervisor John Jingoli. (Complaint, Caption,

opening paragraph).

Plaintiff alleges that these defendants did violate her

civil rights, presumably under 42 U.S.C. § 1983, in the Trenton

Municipal Court during the months from 2009 through January 13,

2011. She generally claims that the defendants discriminated

against her based on her disabilities, and was shown malice in

court. Plaintiff alleges that she paid for a public defender,

provided by the State of New Jersey, who then failed to represent

her in court three times. Plaintiff further alleges that there

was a “conflict of interest” due to the public defender’s

personal and public affiliation with defendant Steve Hallett. 

She also alleges that the Judge, Prosecutor and public defender

did “illegal court proceedings and failed to allow [her] a fair

hearing, speedy trial after three court appearances.” (Compl.,

Cause of Action).

In the brief and amended brief submitted by Plaintiff, she

admits that defendant Steve Hallett had filed a complaint against

Plaintiff in state court. It is from this municipal court action

that the incidents and allegations derive.1

 Plaintiff alleges that she had a personal relationship 1

with Hallett, that he had proposed marriage to her, that he had

asked her to run an ad in the newspaper about the proposed

marriage, which she did, and that he then called the wedding off

and married another. After the ad in the newspaper was

published, Hallett filed his complaint against Plaintiff, seeking

a restraining order against Plaintiff. This Court is well

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In particular, Plaintiff enumerates the following alleged

wrongful conduct by defendants: 

(1) violation of freedom to walk. (2) failure to have a

speedy hearing or trial. (3) differential treatment. (4)

discrimination of gender and disabilities. (5) failure to

give proper representation by the public defenders office

after payment during all court hearings. (6) failure to

transfer court case to another county or court without

conflict of interest app. 3 times. (7) illegally forcing

defendants to move out of the State to live by showing

discrimination by no contact order. (8) discrimination by

Judge, the Plaintiff [Hallett], Prosecutor and public

defender comments during court proceedings knowing I was not

being properly represented and the defendant was a[n]

attorney and a[n] acquaintance. (9) failure to give a

timely hearing. (10) fair hearing, caused the defendant

embarrassment and humiliation in court by prejudice and

favoring the plaintiff without [a] hearing each time. (11)

allowed extensive time period six months to bring the case

back in for a hearing on January 13, 2011. (12) asked the

defendant questions about legal representation. (13) the

public defenders stated a conflict of interest and still

proceeded in court app 3 times after defendant requested the

case be moved to another County the first time. (14) public

defenders office failed to talk to me about my case each

time and proceeded in court app 3 times. (15) the

prosecutor refused to drop the criminal charges and

proceeded when she knew the state had made errors and still

proceeded and did not do there [sic] job in having the case

move out of County. (16) Last Judge Williams violated my

rights telling me I should of [sic] left a public place

after I had been seated, paid for my items and was enjoying

familiar with Plaintiff’s frivolous actions against Hallett in

the recent past, many of which served as a basis for the Court’s

issuance of the September 1, 2009 All Writs Injunction Order. 

Indeed, Plaintiff filed numerous complaints against Hallett that

were dismissed for failure to state a claim or because they

contained frivolous and/or delusional allegations against him. 

See See Carter v. New Jersey State, et al., Civil No. 09-512

(AET); Carter v. State of New Jersey, et al., Civil No. 09-1047

(AET); Carter v, United States District Court, et al., Civil No.

09-2314 (JBS); Carter v. New Jersey State, et al., Civil No. 09-

3704 (FLW); and Carter v. Judge Brown, et al., Civil No. 10-5714

(FLW). 

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myself. Judge Williams then told me in court on January 13,

2011, after the situation I was in, meaning the charges I

was to leave the place, as soon as Attorney Steve Hallett

entered. He wanted my life style confined.

(Plaintiff’s Amended Brief, dated January 24, 2011, Docket entry

no. 2).

On May 24, 2011, defendant Mercer County Prosecutor’s Office

filed a motion to dismiss the Complaint pursuant to Fed.R.Civ.P.

12(b)(6). (Docket entry no. 4). The motion asserts that the

Complaint should be dismissed because the Complaint fails to

state a claim upon which relief may be granted, because the

prosecutor defendants are entitled to prosecutorial immunity

under federal law, and because the prosecutor defendants are

entitled to immunities under the New Jersey Tort Claims Act. 

(Id.).

On July 6, 2011, Plaintiff filed a motion to have all

municipal court transcripts heard in Court and added to the

record. (Docket entry no. 9). On July 8, 2011, Plaintiff filed

another motion to allow the use of the municipal court

transcripts in this case and for recusal of judges from this

case. Namely, Plaintiff seeks to have this Court and the 2

Honorable Tonianne J. Bongiovanni, U.S.M.J. recuse themselves

from this case because it is a “conflict of interest” for them

“to handle this civil matter, along with Judge Garrett Brown.” 

 Also on July 8, 2011, Plaintiff filed an application for 2

appointment of counsel. (Docket entry no. 11).

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(Docket entry no. 10, at pg. 1). In her motion, Plaintiff also

asserted arguments in opposition to the motion filed by

defendant, Mercer County Prosecutor’s Office. Defendant filed a

reply brief on July 14, 2011. (Docket entry no. 13).

On July 18, 2011, Plaintiff filed another letter brief in

opposition to defendant’s motion to dismiss. (Docket entry no.

14). On July 20, 2011, Plaintiff submitted copies of the

municipal court transcripts regarding the claims raised in this

matter. (Docket entry no. 15).

On July 21, 2011, Plaintiff filed yet another motion for

miscellaneous relief and to add two new parties to this action. 

(Docket entry no. 16). The two new parties are the public

defenders, Jason Hageman and Dwayne Williamson, who represented

Plaintiff at her municipal court hearing dates. (Id.).

On July 25, 2011, defendant Mercer County Prosecutor’s

Office filed a supplemental reply letter. (Docket entry no. 17). 

Also on July 25, 2011, Plaintiff filed a request for summary

judgment. (Docket entry no. 18).

Plaintiff asks to be awarded damages in the amount of

$200,000.00 for pain and suffering, differential treatment and

discrimination. (Complaint, Demand).

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DISCUSSION

A. Standard of Review

The Complaint by a litigant proceeding in forma pauperis is

subject to sua sponte dismissal by the court if the Complaint is

frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks money damages from defendants who are

immune from such relief. 28 U.S.C. § 1915(e)(2)(B). In

determining the sufficiency of a pro se complaint, the Court must

be mindful to construe it liberally in favor of the plaintiff. 

See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)(following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972)). See also United States v. Day, 969

F.2d 39, 42 (3d Cir. 1992). The Court must “accept as true all

of the allegations in the complaint and all reasonable inferences

that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Morse v. Lower Merion School Dist.,

132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however,

credit a pro se plaintiff’s “bald assertions” or “legal

conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

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complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 3

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

 Rule 8(d)(1) provides that “[e]ach allegation must be 3

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

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reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 4

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

 In Conley, as stated above, a district court was 4

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

B. Standard on Motion to Dismiss

Similarly, on a motion to dismiss for failure to state a

claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court is required to

accept as true all allegations in the Complaint and all

reasonable inferences that can be drawn therefrom, and to view

them in the light most favorable to the non-moving party. See,

e.g., Iqbal, 129 S.Ct. at 1949-50; Twombly, 550 U.S. at 555;

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384

(3d Cir. 1994). A complaint should be dismissed only if the

alleged facts, taken as true, fail to state a claim. Iqbal, 129

S.Ct. at 1950. The question is whether the claimant can prove

any set of facts consistent with his or her allegations that will

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entitle him or her to relief, not whether that person will

ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165,

173 (3d Cir. 2000), cert. denied, Forbes v. Semerenko, 531 U.S.

1149 (2001).

Thus, for a complaint to survive dismissal under Rule

12(b)(6), it “must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at

570). In determining the sufficiency of a complaint, the Court

must accept all well-pleaded factual allegations in the complaint

as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. County of Allegheny, 515 F.3d 224,

234 (3d Cir. 2008). But, “the tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions [;][t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. 

Additionally, in evaluating a plaintiff’s claims, generally “a

court looks only to the facts alleged in the complaint and its

attachments without reference to other parts of the record.” 

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261

(3d Cir. 1994).

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C. Section 1983 Actions

Plaintiff appears to assert jurisdiction in this matter

pursuant to 42 U.S.C. § 1983, by alleging generally that the

defendants “[d]id violate [her] civil rights and other rights

within the [Trenton municipal] court during months of 2009

through January 13, 2011.” (Compl., “Jurisdiction”). 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 ... .

Thus, 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, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

Consequently, any claim Plaintiff may be asserting against

defendant Steve Hallett must be dismissed because he is not a

state actor.

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D. Judicial Immunity

Generally, a judicial officer in the performance of his or

her duties has absolute immunity from suit. Mireless v. Waco,

502 U.S. 9, 12, 112 S.Ct. 286, 116 L. Ed.2d 9 (1991). This

immunity extends to judges of courts of limited jurisdiction,

such as New Jersey municipal court judges. Figueroa v.

Blackburn, 39 F. Supp.2d 479, 484 (D.N.J. 1999), aff’d, 208 F.3d

435, 441-43 (3d Cir. 2000). Further, “[a] judge will not be

deprived of immunity because the action he took was in error, was

done maliciously, or was in excess of his authority.” Stump v.

Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L. Ed.2d 331

(1978). Judicial immunity serves an important function in that

it furthers the public interest in judges who are “at liberty to

exercise their functions with independence and without fear of

consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213,

18 L. Ed.2d 288 (1967). Judicial immunity is an immunity from

suit, not just from ultimate assessment of damages. Mireless,

502 U.S. at 11.

Courts have repeatedly emphasized the extensive scope of

judicial immunity, holding that immunity applies “‘however

injurious in its consequences [the judge's action] may have

proved to the plaintiff’.” Gallas v. Supreme Court, 211 F.3d

760, 769 (3d Cir. 2000)(quoting Cleavinger v. Saxner, 474 U.S.

193, 199-200 (1985)). “Disagreement with the action taken by the

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judge ... does not justify depriving that judge of his

immunity.... The fact that the issue before the judge is a

controversial one is all the more reason that he should be able

to act without fear of suit.” Stump, 435 U.S. at 363-64.

Further, highlighting its expansive breadth, the court explained

“the public policy favoring the judicial immunity doctrine

outweighs any consideration given to the fact that a judge’s

errors caused the deprivation of an individual’s basic due

process rights.” Figueroa, 39 F. Supp.2d at 495.

There are two circumstances where a judge’s immunity from

civil liability may be overcome. These exceptions to the

doctrine of judicial immunity are narrow in scope and are

infrequently applied to deny immunity. The first exception is

where a judge engages in nonjudicial acts, i.e., actions not

taken in the judge’s judicial capacity. Id.; see also Figueroa,

208 F.3d at 440. The second exception involves actions that,

though judicial in nature, are taken in the complete absence of

all jurisdiction. Mireless, 502 U.S. at 11; Figueroa, 208 F.3d

at 440. Neither exception is applicable in the present case.

In light of the foregoing, Plaintiff’s Complaint must be

dismissed with respect to the named defendant, Judge Williams of

the Trenton Municipal Court. 

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E. Prosecutorial Immunity

Plaintiff also brings this action against state prosecutor

defendants, namely, Bert Scott and John Jingoli. “[A] state

prosecuting attorney who act[s] within the scope of his or her

duties in initiating and pursuing a criminal prosecution” is not

amenable to suit under § 1983. Imbler v. Pachtman, 424 U.S. 409,

410 (1976). Thus, a prosecutor’s appearance in court as an

advocate in support of an application for a search warrant and

the presentation of evidence at such a hearing are protected by

absolute immunity. Burns v. Reed, 500 U.S. 478, 492 (1991). 

Similarly, “acts undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or trial, and which occur in

the course of his role as an advocate for the State, are entitled

to the protections of absolute immunity.” Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993).

A prosecutor is not entitled to absolute immunity, however,

for actions undertaken in some other function. See Kalina v.

Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by

qualified immunity for attesting to the truth of facts contained

in certification in support of arrest warrant, as in her

provision of such testimony she functioned as a complaining

witness rather than a prosecutorial advocate for the state);

Burns, 500 U.S. at 492-96 (the provision of legal advice to

police during pretrial investigation is protected only by

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qualified immunity); Buckley, 409 U.S. at 276-78 (prosecutor is

not acting as an advocate, and is not entitled to absolute

immunity, when holding a press conference or fabricating

evidence). See also Yarris v. County of Delaware, 465 F.3d 129

(3d Cir. 2006)(where the Court of Appeals for the Third Circuit

presents a detailed and nuanced analysis of when a prosecuting

attorney is, and is not, entitled to absolute immunity for

allegedly wrongful acts in connection with a prosecution,

holding, for example, that a prosecutor is not entitled to

absolute immunity for deliberately destroying highly exculpatory

evidence, but is entitled to immunity for making the decision to

deliberately withhold exculpatory evidence before and during

trial, but not after the conclusion of adversarial proceedings).

Here, Plaintiff’s meager allegations against Scott and

Jingoli plainly fall within the scope of their prosecutorial

duties in initiating and pursuing a criminal prosecution against

plaintiff. There are absolutely no allegations that appear to

fall outside the scope of their prosecutorial role, and this

Court is hard-pressed to find any allegation of wrongdoing or

prosecutorial misconduct of any kind. See Imber, 424 U.S. at

424-47 (finding absolute immunity for prosecutor’s knowing use of

perjured testimony in judicial proceedings). 

Further, to the extent that Plaintiff may be alleging a

claim of conspiracy by the prosecutor defendants and others,

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including Steve Hallett and the public defender defendants, the

Complaint consists of nothing more than threadbare, conclusory

statements that fail to satisfy the pleading requirements under

Rule 8. See Iqbal, 129 S.Ct. at 1949-50. Accordingly, the

claims against the prosecutor defendants, Scott and Jingoli, for

their conduct and actions during the municipal court prosecution

of Plaintiff must be dismissed with prejudice for failure to

state a cognizable claim under § 1983.

F. Public Defender Defendants

Next, Plaintiff appears to assert a claim against the Public

Defender’s Office, Supervisor Vernon Clash and the individual

assigned counsel, alleging ineffective assistance of counsel

during plaintiff’s municipal court criminal proceedings in

violation of her Sixth Amendment rights. This claim is not

actionable at this time in a § 1983 action. First, defendants

are not subject to liability under § 1983 because they are not

state actors. 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 Co. v.

Dodson, 454 U.S. 312, 325 (1981) (a public defender performing a

lawyer’s traditional functions as counsel to a defendant, such as

determining trial strategy and whether to plead guilty, 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

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color of state law). Even if defendants were privately retained

lawyers, they would not be subject to liability under § 1983. 

Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) (privatelyretained counsel does not act under color of state law when

representing client).

Moreover, even if Plaintiff had pleaded facts establishing

that her assigned attorneys were acting under color of state law,

any claim concerning a violation of plaintiff’s right to

effective assistance of counsel must first be raised in

plaintiff’s ongoing state criminal proceedings. A federal court

generally will not intercede to consider issues that the

plaintiff has an opportunity to raise before the state court. 

See Younger v. Harris, 401 U.S. 37 (1971).5

Therefore, plaintiff’s Complaint asserting any liability

against the public defender defendants under § 1983, as to an

ineffective assistance of counsel claim, must be dismissed for

failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).

 Further, to the extent that Plaintiff’s criminal trial is 5

no longer pending, and she has been sentenced on any state

charges, which is not apparent from the Complaint, any claim of

ineffective assistance of counsel in this regard must first be

exhausted via state court remedies, i.e., by direct appeal or

other available state court review; and then, if appropriate, by

filing a federal habeas application, under 28 U.S.C. § 2254, to

assert any violations of federal constitutional or statutory law,

namely, her claim of ineffective assistance of counsel. Preiser

v. Rodriguez, 411 U.S. 475 (1973).

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G. Claims Against State of New Jersey and Dow

Finally, this Court will dismiss the Complaint with respect

to defendants, the State of New Jersey, and the N.J. Attorney

General Paula Dow, because Plaintiff has asserted no factual

allegations of any kind, let alone, wrongdoing by these

defendants. See Iqbal, 129 S.Ct. at 1949-50. Plaintiff simply

alleges that the defendants violated her civil rights, and that

they did discriminate against her during her municipal court

proceedings. These bare allegations are nothing more than a

legal conclusion wholly unsupported by any factual allegation,

which is insufficient to state a claim under Iqbal. See Iqbal,

129 S.Ct. at 1950. 

Moreover, the Complaint against these defendants is barred

under the Eleventh Amendment. The Eleventh Amendment to the

United States Constitution provides that, “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 by Citizens or Subjects

of any Foreign State.” As a general proposition, a suit by

private parties seeking to impose a liability which must be paid

from public funds in a state treasury is barred from federal

court by the Eleventh Amendment, unless Eleventh Amendment

immunity is waived by the state itself or by federal statute. 

See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The

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Eleventh Amendment protects states and their agencies and

departments from suit in federal court regardless of the type of

relief sought. Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 100 (1984). Thus, based on the doctrine of

sovereign immunity, states cannot be sued in federal court,

unless Congress has abrogated that immunity or the State has

waived it. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66

(1989).

Similarly, absent consent by a state, the Eleventh Amendment

bars federal court suits for money damages against state officers

in their official capacities. See Kentucky v. Graham, 473 U.S.

159, 169 (1985). This immunity extends to state agents or

officials when the “action is in essence one for the recovery of

money from the state, the state is the real, substantial party in

interest and is entitled to sovereign immunity from suit even

though individual officials are nominal defendants.” Regents of

the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997). Section 1983

does not override a state’s Eleventh Amendment immunity. Quern

v. Jordan, 440 U.S. 332 (1979). Therefore, “[a]s a matter of

law, suits against individuals acting in their official

capacities are barred by the Eleventh Amendment.” Holland v.

Taylor, 604 F. Supp.2d 692, 699 (D. Del. 2009). See also Davis

v. New York, 316 F.3d 93, 101 (2d Cir. 2002). 

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Consequently, the Court will dismiss the Complaint with

prejudice, in its entirety, as against the defendants, the State

of New Jersey and N.J. Attorney General Paula Dow, pursuant to

the Eleventh Amendment.6

H. Preclusion Order

Alternatively, this Court concludes that this action should

be dismissed because it was filed in violation of this Court’s

September 1, 2009 All Writs Injunction Order. See Carter v. New

Jersey State, et al., Civil No. 09-3704 (FLW), Docket entry no.

6.

 Additionally, Plaintiff’s Complaint against defendant Dow 6

would appear to be based solely on a claim of supervisory

liability. As a general rule, government officials may not be

held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior. See Iqbal,

129 S.Ct. at 1948; Monell v. New York City Dept. Of Social

Servs., 436 U.S. 658, 691 (1978)(finding no vicarious liability

for a municipal “person” under 42 U.S.C. § 1983); Robertson v.

Sichel, 127 U.S. 507, 515-16 (1888)(“A public officer or agent is

not responsible for the misfeasances or position wrongs, or for

the nonfeasances, or negligences, or omissions of duty, of

subagents or servants or other persons properly employed by or

under him, in discharge of his official duties”). In Iqbal, the

Supreme Court held that “[b]ecause vicarious or supervisor

liability is inapplicable to Bivens and § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the

official’s own individual actions, has violated the

Constitution.” Iqbal, 129 S.Ct. at 1948. Thus, each government

official is liable only for his or her own conduct. The Court

rejected the contention that supervisor liability can be imposed

where the official had only “knowledge” or “acquiesced” in their

subordinates conduct. Id., 129 S.Ct. at 1949. 

Here, in the instant Complaint, there are no allegations of

any wrongful conduct with respect to defendant Dow, other than a

broad allegation based on her supervisory title as Attorney

General of the State of New Jersey. Accordingly, any § 1983

claim must be dismissed as against Dow.

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I. Recusal Motion

Plaintiff recently filed a motion to have this Court and the

Honorable Tonianne J. Bongiovanni, U.S.M.J. recuse from handling

this matter because it is a “conflict of interest... to handle

this civil matter, along with Judge Garrett Brown.” (Docket

entry no. 10, at pg. 1). This motion is decided without oral

argument pursuant to Federal Rule of Civil Procedure 78.

Title 28 U.S.C. § 455(a) provides, “[a]ny justice, judge or

magistrate judge of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned.” The other applicable recusal statute, 28 U.S.C. §

144, provides “[w]henever a party to any proceeding in a district

court makes and files a timely and sufficient affidavit that the

judge before whom the matter is pending has a personal bias or

prejudice either against him or in favor of any adverse party,

such judge shall proceed no further therein.” Under 28 U.S.C. § 7

455(a), it is not the case that a judge should recuse himself

 Here, Plaintiff fails to explicitly move under either 7

§ 455(a) or § 144. However, the Court is satisfied that the

motion can be analyzed by this Court under both § 455(a) and 

§ 144. If a recusal motion is made pursuant to § 455, the

questioned judge is entitled to rule upon the motion. If the

motion is made pursuant to § 144, another judge must rule on the

recusal motion so long as the supporting affidavit meets the

“sufficiency test.” In re Kensington Int’l Ltd., 353 F.3d 211,

224 (3d. Cir. 2003). The Court is satisfied that, because no

supporting affidavit was filed by Plaintiff to satisfy the

“sufficiency test,” this motion for recusal may be ruled upon by

this Court.

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where, in his/her opinion, sitting would be inappropriate. The

correct inquiry is whether the judge’s impartiality has been

reasonably questioned. In re Prudential Ins. Co. Of Am. Sales

Practice Litig. Agent Actions (Krell), 148 F.3d 283, 343 (3d Cir.

1998), cert. denied 525 U.S. 1114 (1999). The alleged prejudice

usually obtains from an extrajudicial source; a judge’s prior

adverse ruling alone is not sufficient cause for recusal. 

“[J]udicial rulings alone almost never constitute a valid basis

for a bias or partiality motion. ... [They] can only in the

rarest circumstances evidence the degree of favoritism or

antagonism required ... when no extrajudicial source is involved. 

Almost invariably, they are proper grounds for appeal, not

recusal.” In re Levi, 314 Fed. Appx. 418, 419 (3d Cir.

2008)(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). 

An alternative means of recusal is governed under 28 U.S.C. §

144, which enables recusal upon timely submission of an affidavit

and supporting certificate of good faith.

The Court of Appeals for the Third Circuit has held that the

challenged judge must determine only the sufficiency of the

affidavit, not the truth of the assertions. Mims v. Shapp, 541

F.2d 415, 417 (3d Cir. 1976). The Third Circuit also has held

that the allegations in a § 144 affidavit must convince a

reasonable person of the Judge’s partiality. United States v.

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Dansker, 537 F.2d 40, 53 (3d Cir. 1976), cert. denied 429 U.S.

1038 (1977).

Here, Plaintiff has failed to submit a certified or

notarized affidavit. Rather, she provides only a motion

alleging grounds for recusal based on unsupported, conclusory

statement that it is a “conflict of interest [for this Court] to

handle this civil matter, along with Judge Garrett Brown.” 

Plaintiff provides no basis for her conclusory statement. 

Indeed, the motion is completely bare of any factual grounds to

support recusal with respect to this Court or with respect to

Judge Bongiovanni. 

Consequently, this Court is not convinced that recusal is

appropriate under either 28 U.S.C. § 455(a) or 28 U.S.C. § 144. 

The Court declines to recuse itself under § 455, as the Court is

not convinced that its impartiality has been reasonably

questioned. The Court is satisfied that a reasonable person

would not be convinced of the Court’s alleged bias after reading

Plaintiff’s moving papers. Plaintiff’s motion is simply

conclusory and devoid of any factual allegations that would

render recusal appropriate. Liteky, 510 U.S. at 555. Similarly,

removal under 28 U.S.C. § 144 is not appropriate. Section 144

requires an affidavit of fact that must convince a reasonable

person of the Judge’s partiality. Dansker, 537 F.2d at 53. 

Here, Plaintiff’s motion, as stated above, merely concludes that

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judicial bias and collaboration has occurred, without including

assertions of fact in support of this conclusion, based only on

the bare assertion that this Court and Judge Bongiovanni sit

along with Judge Brown. A conclusory affidavit is not sufficient

for recusal. Smith v. Vidonish, 210 Fed. Appx. 152, 155 (3d Cir.

2006)(holding that conclusory statements in a recusal affidavit

need not be credited). It is well-established that a court need

not credit conclusory allegations or legal conclusions. See

Iqbal, 129 S.Ct. at 1949-50. 

Moreover, to the extent that Plaintiff makes this

application based on this Court’s prior rulings dismissing

several of Plaintiff’s earlier-filed actions, such ground is not

a basis for recusal. A party’s disagreement with a Court’s

ruling is not a basis for recusal; otherwise any unsuccessful

litigant would be able to disqualify the Judge who rendered the

unfavorable ruling. In re TMI Litig., 193 F.3d 613, 728 (3d Cir.

1999), cert. denied 530 U.S. 1225 (2000).

Accordingly, as Plaintiff has not met the requirements of 28

U.S.C. § 455(a) or 28 U.S.C. § 144, her motion for recusal must

be denied. 

CONCLUSION

For the reasons set forth above, this Court will dismiss

with prejudice Plaintiff’s Complaint, in its entirety, as against

all named defendants, for failure to state a claim upon which

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relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 

Plaintiff’s motion for recusal (Docket entry no. 10) is denied. 

Finally, all other motions filed by Plaintiff and defendants in

this action are denied as moot. An appropriate Order accompanies

this Opinion.

 /s/ Freda L. Wolfson 

FREDA L. WOLFSON 

United States District Judge

Dated: November 22, 2011 

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