NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

 :

GEORGE BERG, #0009855511C :

 : Civil Action No. 

Plaintiff, : 10-4028 (JBS)

 :

v. : O P I N I O N 

 :

DAVE HENDERSON, :

 :

Defendants. :

 :

 

Simandle, District Judge:

Plaintiff George Berg 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 the

meaning of 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 to file the Complaint.

At this time, the Court must review the Complaint 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.

I. BACKGROUND

Naming his former public defender as Defendant in this

action, Plaintiff alleges that, on April 27, 2010, while being at

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the Atlantic County Court House together with Defendant (for the

purposes related to Plaintiff’s then-pending state criminal

prosecution), Plaintiff, in confidence, “related [a certain

unspecified] pertinent information” to Defendant, and Defendant,

in turn, “related this information to the prosecuting attorney.” 

See Docket Entry No. 1, at 4. According to the Complaint, this

latter disclosure resulted in the prosecutor’s reconsideration of

the then-outstanding plea offer: the offer was changed in terms

less favorable to Plaintiff. See id. (asserting that Plaintiff’s

“plea offer was raised”). 

Plaintiff filed his Complaint seeking the following relief:

I would like to have a new [public defender] attorney

and prosecutor [appointed], I also know my chances at

having fair legal proceeding [from] any prosecutor [in]

Atlantic County would be highly improbable since they

will have contact with my [current] prosecutor.

Id. at 5.

II. STANDARD OF REVIEW

 In determining the sufficiency of a complaint, the Court

must be mindful to construe the facts stated in the complaint

liberally in favor of the plaintiff. See Erickson v. Pardus, 551

U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is

long established that a court should “accept as true all of the

[factual] allegations in the complaint and reasonable inferences

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

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

132 F.3d 902, 906 (3d Cir. 1997). However, while a court will

accept well-pled allegations as true, it will not accept bald

assertions, unsupported conclusions, unwarranted inferences, or

sweeping legal conclusions cast in the form of factual

allegations. See id. 

Addressing the clarifications as to the litigant's pleading

requirement stated in the United States Supreme Court in Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals

for the Third Circuit provided the courts in this Circuit with

detailed and careful guidance as to what kind of allegations

qualify as pleadings sufficient to pass muster under the Rule 8

standard. See Phillips v. County of Allegheny, 515 F.3d 224,

230-34 (3d Cir. 2008). Specifically, the Court of Appeals

observed as follows:

“While a complaint . . . does not need detailed

factual allegations, a plaintiff's obligation [is] to

provide the 'grounds' of his 'entitle[ment] to relief'

[by stating] more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action . . . .” Twombly, 127 S. Ct. at 1964-65 . . .

Rule 8 “requires a 'showing,' rather than a blanket

assertion, of entitlement to relief.” Id. at 1965

n.3. . . . “[T]he threshold requirement of Rule

8(a)(2) [is] that the 'plain statement [must] possess

enough heft to 'sho[w] that the pleader is entitled to

relief.'” Id. at 1966. [Hence] “factual allegations

must be enough to raise a right to relief above the

speculative level.” Id. at 1965 & n.3. . . . [Indeed,

it is not] sufficient to allege mere elements of a

cause of action; instead “a complaint must allege

facts suggestive of the proscribed conduct.” Id.

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Id. at 230-34 (original brackets removed). 

This pleading standard was further refined by the United

States Supreme Court in its recent decision Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009):

[In any civil action, t]he pleading standard . . .

demands more than an unadorned [“]the-defendantunlawfully-harmed-me[“] accusation. [Twombly, 550

U.S.] at 555 . . . . A pleading that offers “labels

and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” [Id.] at

555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557. . . . A claim has facial

plausibility [only] when the plaintiff pleads factual

content . . . . Id. at 556. [Moreover,] the

plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully. 

Id. [Indeed, even w]here a complaint pleads facts that

are “merely consistent with” a defendant's liability,

[the so-alleging complaint still] “stops short of

[showing] plausibility of 'entitlement to relief.'” 

Id. at 557 (brackets omitted). [A fortiori,] the tenet

that a court must accept as true all of the

allegations contained in a complaint is inapplicable

to legal conclusions [or to t]hreadbare recitals of

the elements of a cause of action, supported by mere

conclusory statements [,i.e., by] legal conclusion[s]

couched as a factual allegation [e.g.,] the

plaintiffs' assertion of an unlawful agreement [or]

that [defendants] adopted a policy “'because of,' not

merely 'in spite of,' its adverse effects upon an

identifiable group.” . . . . [W]e do not reject these

bald allegations on the ground that they are

unrealistic or nonsensical. . . . It is the

conclusory nature of [these] allegations, rather than

their extravagantly fanciful nature, that disentitles

them to the presumption of truth. . . . [Finally,] the

question [of sufficiency of] pleadings does not turn .

. . the discovery process. Twombly, 550 U.S.] at 559

. . . . [The plaintiff] is not entitled to discovery

[where the complaint alleges any of the elements]

“generally,” [i.e., as] a conclusory allegation

[since] Rule 8 does not [allow] pleading the bare

elements of [the] cause of action [and] affix[ing] the

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label “general allegation” [in hope to develop facts

through discovery].

Iqbal, 129 S. Ct. at 1949-54.

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. See West v. Atkins, 487 U.S. 42, 48

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

1994).

IV. DISCUSSION

A. Relief Requested

Plaintiff’s claims, construed literally as an application

for injunctive relief directing appointment of another public

defender and another prosecutor, and for a transfer of venue of

Plaintiff’s state criminal proceedings, falls outside this

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Court’s jurisdiction; federal courts cannot get involved in

administrative or procedural aspects of ongoing state

proceedings, and -– to the degree these administrative or

procedural aspects affect federal rights of state litigants –-

federal courts’ interference is strictly limited. See Younger v.

Harris, 401 U.S. 37 (1971).1

Moreover, Plaintiff’s application for injunctive relief has

been rendered moot by Plaintiff either taking a plea or being

tried to (and convicted by) a jury, since – as of now – Plaintiff

 The doctrine of abstention, which has developed since 1

Younger, “espouse[s] a strong federal policy against

federal-court interference with pending state judicial

proceedings absent extraordinary circumstances.” Middlesex

County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423,

431 (1982). “Younger abstention,” as the Court's teaching is

known, “is premised on the notion of comity, a principle of

deference and 'proper respect' for state governmental functions

in our federal system.” Evans v. Court of Common Pleas, Delaware

County, Pa., 959 F.2d 1227, 1234 (3d Cir. 1992), cert. dismissed,

506 U.S. 1089 (1993). Comity concerns are especially heightened

when the ongoing state governmental function is a criminal

proceeding. See id. The specific elements of the Younger

abstention are that “(1) there are ongoing state proceedings that

are judicial in nature; (2) the state proceedings implicate

important state interests; and (3) the state proceedings afford

an adequate opportunity to raise federal claims.” Schall v.

Joyce, 885 F.2d 101, 106 (3d Cir. 1989). All three Younger

criteria are met in the case at hand. First, Plaintiff's claim

concerns a separate pending criminal case. Second, since

Plaintiff attempts to raise issues seemingly concerning the

validity of his plea and his due process rights, his proceeding

clearly implicates important state interests. Third, the state

forum affords Plaintiff an adequate opportunity to raise these

challenges. See Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995)

(citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987))

(“Initially, we must presume that the state courts are able to

protect the interests of the federal plaintiff”). 

6

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is a convicted individual serving his prison term, having been

admitted to CRAF on October 15, 2010. See 2

<<https://www6.state.nj.us/DOC_Inmate/details?x=1309691&n=0>>;

see also Int'l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 916

(3d Cir. 1987) (the central question in the mootness analysis is

whether meaningful or effective relief remains available).

Thus, Plaintiff’s Complaint, as presently framed, shall be

dismissed on Younger grounds or, alternatively, as moot.

B. Alternative Relief

The Court, however, cannot rule out that Plaintiff might

have wished to assert claims seeking relief other than

appointment of another defense counsel or prosecutor, or venue

transfer of his state criminal proceedings. The Court,

therefore, will examine Plaintiff’s claims accordingly.

As noted supra, to recover against a defendant under 42

U.S.C. § 1983, a plaintiff must establish that the defendant

acted under “color of [state] law” to deprive him of a right

secured by the federal Constitution or laws. See Groman v. Twp.

of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Section 1983 does

not create substantive rights; rather, it provides an avenue of

recovery for the deprivation of established federal

 Plaintiff has not informed this Court of his new address, 2

contrary to the requirements of L. Civ. R. 10.1(a). This Court

will nonetheless direct the Clerk to use Plaintiff's current

address at CRAF in Trenton, in the accompanying Order.

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constitutional and statutory rights. See Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996); Groman, 47 F.3d at 633. “The

color of state law . . . is a threshold issue; there is no

liability under [Section] 1983 for those not acting under color

of law.” Id. at 638. The color of state law element in a

section 1983 action requires that “the conduct allegedly causing

the deprivation of [the plaintiff's rights] be fairly

attributable to the State.” Lugar v. Edmonson Oil Co., 457 U.S.

922, 937 (1982). For the conduct to be “fairly attributable” to

the State: (1) the deprivation must be caused by (a) the exercise

of some right or privilege created by the State or (b) by a rule

of conduct imposed by it or by a person for whom the State is

responsible, and (2) the defendant must be a person who may

fairly be said to be a state actor, either because the person (a)

is a state official, (b) acted together with or has obtained

significant aid from state officials, or (c) performed conduct

otherwise chargeable to the State. See id. at 936-39.

It is well-settled that neither a privately retained counsel

nor a court-appointed public defender who performs a lawyer's

traditional function as counsel to a defendant in a criminal

proceeding could be deemed as acting under color of law. See

Polk County v. Dodson, 454 U.S. 312, 325 (1981). Whether

court-appointed or privately retained, a defense attorney

represents only her client and not the state. See Johnson v.

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Kafrissen, 1995 U.S. Dist. LEXIS 8072, at *2 (E.D. Pa. June 5,

1995).

Further, now that Mr. Berg has apparently been convicted and

sentenced, any attack upon his conviction must be by appeal

within the Superior Court of New Jersey, Appellate Division, and

not within this federal court. 

V. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff's

application to file the Complaint without prepayment of the

filing fee and will direct the Clerk to file the Complaint.

Plaintiff’s application for injunctive relief will be denied

with prejudice. Plaintiff’s Complaint, being construed as an

application for damages, will be dismissed without prejudice, and

Plaintiff will be allowed to file an amended complaint stating

the pertinent facts in accordance with the guidance provided

herein. 

An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle 

 JEROME B. SIMANDLE

 United States District Judge

Dated: November 10, 2010

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