NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JUSTICE ALLAH, :

a/k/a Melvin Baldwin, :

: Civil Action No. 10-3289 (FSH)

Plaintiff, :

:

v. : OPINION

:

BRIAN FERRETTI, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Justice Allah

C/O Melvin Baldwin

20 Toler Place

Newark, NJ 07114

HOCHBERG, District Judge

Plaintiff Justice Allah, also known as Melvin Baldwin, a

prisoner confined at Delaney Hall in Newark, New Jersey, seeks to

bring this action in forma pauperis pursuant to 42 U.S.C. § 1983,

alleging violations of his constitutional rights. Based on his

affidavit of indigence and the absence of three qualifying

dismissals within 28 U.S.C. §1915(g), the Court will grant

Plaintiff’s application to proceed in forma pauperis pursuant to

28 U.S.C. § 1915(a) and order the Clerk of the Court to file the

Complaint.

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

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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.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that Defendant Brian Ferretti, a WalMart

employee, stated that he observed Plaintiff stealing two laptop

computers and that, a week later, he filed a police report. 

Plaintiff alleges that Defendant Brian Ferretti “racially

profiled” him. 

Plaintiff alleges that Defendant Linden Police Department

Officers Sheehan and Wegrzynek never went to WalMart to

investigate or look at videotapes of the alleged shoplifting. He

alleges that the Union County Prosecutor’s Office

administratively dismissed the shoplifting complaint on August

24, 2009, but that he never received a first appearance or

otherwise appeared before a judge, as required by New Jersey

Rules of Court. Plaintiff alleges that these defendants deprived

him of his constitutional right to due process.

Plaintiff names as Defendants Brian Ferretti, WalMart, Gavin

Sheehan, Vinc Wegrzynek, the Union County Prosecutor’s Office,

and Prosecutor Theodore Romankow. Plaintiff seeks monetary

damages.

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II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); 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).

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

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

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

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In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)

(citations omitted).

The Supreme Court has demonstrated the application of these

general standards to a Sherman Act conspiracy claim.

In applying these general standards to a § 1

[conspiracy] claim, we hold that stating such a claim

requires a complaint with enough factual matter (taken

as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage;

it simply calls for enough fact to raise a reasonable

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expectation that discovery will reveal evidence of

illegal agreement. And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and

“that a recovery is very remote and unlikely.” ... It

makes sense to say, therefore, that 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. Hence, when

allegations of parallel conduct are set out in order to

make a § 1 claim, they must be placed in a context that

raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be

independent action.

The need at the pleading stage for allegations

plausibly suggesting (not merely consistent with)

agreement reflects the threshold requirement of Rule

8(a)(2) that the “plain statement” possess enough heft

to “sho[w] that the pleader is entitled to relief.” A

statement of parallel conduct, even conduct consciously

undertaken, needs some setting suggesting the agreement

necessary to make out a § 1 claim; without that further

circumstance pointing toward a meeting of the minds, an

account of a defendant’s commercial efforts stays in

neutral territory. ...

Twombly, 127 S.Ct. at 1965-66 (citations and footnotes omitted).

The Court of Appeals for the Third Circuit has held, in the

context of a § 1983 civil rights action, that the Twombly

pleading standard applies outside the § 1 antitrust context in

which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read

Twombly so narrowly as to limit its holding on plausibility to

the antitrust context”).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

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allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“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.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

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district courts should conduct a two-part analysis. 

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. 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.” 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 the pleader is entitled to relief.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

A 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:

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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).

Finally, a § 1983 action brought against a person in his or

her official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 690 n.55. “[I]n an officialcapacity action, ... a governmental entity is liable under § 1983

only when the entity itself is a ‘moving force’ behind the

deprivation; thus, in an official capacity suit the entity’s

‘policy or custom’ must have played a part in the violation of

federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

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IV. ANALYSIS

A. Claims against Prosecutors

Plaintiff seeks to assert claims against both the Union

County Prosecutor’s Office and against Prosecutor Theodore

Romankow. The claims must be dismissed.

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 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). 

Section 1983 does not override a state’s Eleventh Amendment

immunity. Quern v. Jordan, 440 U.S. 332 (1979).

To determine whether Eleventh Amendment immunity applies to

a state agency, a court must consider three factors: (1) the

source of the agency’s funding - i.e., whether payment of any

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judgment would come from the state’s treasury, (2) the status of

the agency under state law: and (3) the degree of autonomy from

state regulation. See Flitchik v. New Jersey Transit Rail

Operations, 873 F.2d 655, 659 (3d Cir.) (en banc), cert. denied,

493 U.S. 850 (1989). In Coleman v. Kaye, 87 F.3d 1491 (3d Cir.

1996), the U.S. Court of Appeals for the Third Circuit considered

all of these factors in the context of a New Jersey county

prosecutor’s office and recognized that county prosecutorial

offices conduct two distinct sets of functions: (1) the

administrative functions of operating their offices and (2) the

classic law enforcement and investigative functions for which

they are chiefly responsible. The Third Circuit’s analysis

culminated in the conclusion that “when [New Jersey count]

prosecutors engage in classic law enforcement and investigative

functions, they act as officers of the state.” Id. at 1505.

Here, Plaintiff’s claims challenging prosecutorial actions

in connection with his arrest and subsequent court appearances

relate to a prosecutor’s classic law enforcement functions, from

which the Union County Prosecutor’s Office is immune under the

Eleventh Amendment. Title 28 Sections 1915(e)(2)(B)(iii) and

1915A(b)(2) require this Court to dismiss this action if it

“seeks monetary relief from a defendant who is immune from such

relief.” Accordingly, all claims against the Union County

Prosecutor’s Office will be dismissed with prejudice.

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In addition, “a state prosecuting attorney who act[s] within

the scope of his 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 for 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). Accordingly, the claim against Prosecutor

Theodore Romankow must also be dismissed with prejudice.

B. Claims Against Officers Gavin Sheehan and Vinc Wegrzynek

Plaintiff alleges that Officers Gavin Sheehan and Vinc

Wegrzynek failed to properly investigate the alleged shoplifting

crime. Plaintiff does not state that the officers arrested him;

nevertheless, this Court can discern no other purported claim

from the facts alleged than an attempt to state a claim for

arrest without probable cause.

It is well established in the Third Circuit that an arrest

without probable cause is a Fourth Amendment violation actionable

under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d

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Cir. 1989)(citing cases); see also, Albright v. Oliver, 510 U.S.

266, 274 (1994)(a section 1983 claim for false arrest may be

based upon an individual’s Fourth Amendment right to be free from

unreasonable seizures). Under New Jersey law, false arrest has

been defined as “the constraint of the person without legal

justification.” Ramirez v. United States, 998 F. Supp. 425, 434

(D.N.J. 1998) (quoting Fleming v. United Postal Service, Inc.,

604 A.2d 657, 680 (N.J. Law Div. 1992)).

To state a Fourth Amendment claim for false arrest, a

plaintiff must allege two elements: (1) that there was an

arrest; and (2) that the arrest was made without probable cause. 

Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.

1988). To establish the absence of probable cause, a plaintiff

must show “that at the time when the defendant put the

proceedings in motion the circumstances were such as not to

warrant an ordinary prudent individual in believing that an

offense had been committed.” Lind v. Schmid, 67 N.J. 255, 262

(1975). “Probable cause . . . requires more than mere suspicion;

however, it does not require that the officer have evidence to

prove guilt beyond a reasonable doubt.” Orsatti v. New Jersey

State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Rather,

probable cause exists when the facts and circumstances are

“sufficient to warrant a prudent man in believing that the

defendant had committed or was committing an offense.” Gerstein

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v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio,

379 U.S. 89, 91 (1964)); Sharrar v. Felsing, 128 F.3d 810, 817

(3d Cir. 1997).

Here, the facts alleged are not sufficient to state a claim

for false arrest. Apart from the absence of any facts describing

the circumstances of his arrest, e.g., whether there was a

warrant, who effected the arrest, etc., the mere fact that these

two officers did not conduct the type of investigation Plaintiff

deems appropriate is not sufficient to show that they arrested

Plaintiff without probable cause. This is the sort of conclusory

pleading prohibited by the Twombly/Iqbal line of cases. This

claim will be dismissed without prejudice.

C. Claims Against Brian Ferretti and WalMart

Plaintiff alleges that Brian Ferretti “racially profiled”

him. He makes no factual allegations against WalMart. The Court

construes this as an attempt to state a claim that Brian Ferretti

violated Plaintiff’s equal protection rights under the Fourteenth

Amendment to the U.S. Constitution and that WalMart is

vicariously liable.

As noted above, to state a claim under § 1983, a Plaintiff

must assert that the violation was committed by a person acting

under color of state law. “[T]he under-color-of-state-law

element of § 1983 excludes from its reach ‘merely private

conduct, no matter how discriminatory or wrongful.’” American

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Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)

(citations omitted). Nevertheless, “the deed of an ostensibly

private organization or individual” at times may demand to be

treated “as if a State has caused it to be performed.” Brentwood

Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288

(2001). Specifically, “state action may be found if, though only

if, there is such a ‘close nexus between the State and the

challenged action’ that seemingly private behavior ‘may be fairly

treated as that of the State itself.’” Id. (quoting Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

It is clear that the act of reporting a crime does not

convert a private person or entity into a state actor. See,

e.g., District of Columbia v. Carter, 409 U.S. 418, 424 (1973);

Bingaman v. Bingaman, 2009 WL 2424641 (M.D. Pa. Aug. 5, 2009)

(collecting cases); Awkakewakeyes v. Normalizo-Kopus, 1986 WL

2247 (E.D. Pa. Feb. 14, 1986), aff’d, 810 F.2d 1163 (3d Cir.

1987).

In addition, there is no vicarious liability under § 1983. 

“A defendant in a civil rights action must have personal

involvement in the alleged wrongs, liability cannot be predicated

solely on the operation of respondeat superior. Personal

involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

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omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995).

Accordingly, all claims under § 1983 asserted against Brian

Ferretti and WalMart must be dismissed with prejudice.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim. However, because it 1

is conceivable that Plaintiff may be able to supplement his

pleading with facts sufficient to state a claim for false arrest,

the Court will grant Plaintiff leave to file an amended complaint

as to that claim only. 

2

 The Court notes that “‘[g]enerally, an order which 1

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

 Plaintiff should note that when an amended complaint is 2

filed, the original complaint no longer performs any function in

the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and

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An appropriate order follows.

s/Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: March 31, 2011

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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