NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KAREEM COLVIN, :

: Civil Action No. 10-6231 (RBK)

Plaintiff, :

:

v. : OPINION

:

JUDY D. BERRY, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

Kareem Colvin

234670

CCCF

P.O. Box 90431

Camden, NJ 08103

KUGLER, District Judge

Plaintiff Kareem Colvin, an inmate confined at Camden County

Correctional Facility in Camden, 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 is a pre-trial detainee confined at Camden County

Correctional Facility. He alleges that Assistant Prosecutor Judy

D. Berry “added a first degree armed robbery conspiracy to

robbery and a certain persons charge and the victim never said

that.” Plaintiff alleges that on June 1, 2010, Judy D. Berry

included charges against him that pertained to facts not in the

victim’s witness statement against him. He alleges that the

additional charges were “between [his] co-defendant and the

victim.”

Plaintiff seeks compensatory and punitive damages. He also

seeks an order compelling dismissal of the charges.

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

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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 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). See also Morse v. Lower Merion School

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Dist., 132 F.3d at 906 (a court need not credit a pro se

plaintiff’s “bald assertions” or “legal conclusions”).

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).

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).

In addition, a complaint must comply with 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.” Rule 10(b) provides:

A party must state its claims ... in numbered

paragraphs, each limited as far as practicable to a

single set of circumstances. ... If doing so would

promote clarity, each claim founded on a separate

transaction or occurrence ... must be stated in a

separate count or defense.

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Rule 20(a)(2) controls the permissive joinder of defendants in

pro se prisoner actions as well as other civil actions.

Persons ... may be joined in one action as defendants

if:

(A) any right to relief is asserted against them

jointly, severally, or in the alternative with respect

to or arising out of the same transaction, occurrence,

or series of transactions or occurrences; and

(B) any question of law or fact common to all

defendants will arise in the action.

(emphasis added). See, e.g., Pruden v. SCI Camp Hill, 252

Fed.Appx. 436 (3d Cir. 2007); George v. Smith, 507 F.3d 605 (7th

Cir. 2007). 

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:

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

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

1994).

IV. ANALYSIS

Plaintiff alleges that the prosecutor charged him with

additional charges that did not pertain to him.

“[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). “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).

Here, Plaintiff’s allegation that the assistant prosecutor

proceeded with the prosecution on the basis of the facts not

contained in the witness statement alleges specifically the type

of behavior as an advocate that is entitled to absolute immunity. 

The claim against the prosecutor must be dismissed with

prejudice.

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V. CONCLUSION

For the reasons set forth above, the Complaint must be

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

1915A(b)(1), for failure to state a claim. It does not appear

that the defects in this pleading could be cured by amendment at

this time. An appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: June 14, 2011

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