NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY 

________________________________

:

ANTHONY JOHNSON, :

: Civil Action No. 11-3588

 : (RMB/KMW)

Plaintiff, :

:

 v. : OPINION

:

CAMDEN COUNTY :

PROSECUTORS OFFICE, et al., :

:

Defendants. :

_______________________________________ :

BUMB, District Judge:

This matter comes before the Court upon Plaintiff’s motion

seeking to amend his original pleading, see Docket Entry No. 62. 

For the reasons detailed below, Plaintiff’s motion will be

granted, and his original and amended complaints will be

dismissed. Plaintiff will be directed to show cause as to why

his two lines of challenges that survived sua sponte screening of

his original complaint should not be dismissed for failure to

state a claim upon which relief can be granted. 

In conjunction with the same, the appointment of Plaintiff’s

pro bono counsel will be suspended, subject to reinstatement in

the event he shows cause as to the viability of his claims that

survived sua sponte screening. In the same vein, the Order

issued by Magistrate Judge Karen Williams to permit Plaintiff’s
deposition will be suspended, subject to reinstatement in the

event Plaintiff shows cause as to the viability of these claims.

The events underlying Plaintiff’s challenges raised in this

matter have already been extensively detailed by this Court in

its opinion issued with regard to Plaintiff’s duplicative action,

Johnson v. Maynard (“Johnson-II”), Civ. Action No. 11-4677 (RMB);

that opinion was docketed in this matter for informational

purposes, see Docket Entry No. 84, and it detailed the underlying

facts, as they were presented in Plaintiff’s Johnson-II pleading

and the exhibits upon which he relied. See id. at 2-7.

Because the Court writes for the parties, it briefly

summarizes the extensive facts as follows. On September 12,

2009, at 5 a.m., Daphne Hill (“Hill”) entered a Wawa store in

Sicklerville, New Jersey (“Wawa Store”), and attempted to use

credit cards and a debit card to purchase cigarettes, two

T-mobile gift cards and ten Visa gift cards worth one hundred

dollars each. Because the credit card she initially presented

was issued in the name of Anna Kelden (“Kelden”), the cashier

asked Hill to produce an identification in Kelden’s name. Hill

produced a driver’s license so issued; the driver’s licence had

Hill’s photo on it. However, concerned with the high-dollarvalue of the transactions attempted, the cashier summoned the

manager who examined Hill’s credit and debit cards, as well as

2
the driver licence she presented and noted that one of the cards

had a photo different from that on the driver’s license. 

Realizing that such discrepancy was likely to mean that the

cards and/or driver’s license were either stolen or forged, or

that some other form of fraud was attempted, the manager called

the police. Taking notice of that development, Hill swiftly fled

in a Ford SUV, which was stopped by the police not far away from

the Wawa Store, since the roads were empty at that morning hour,

and the vehicle description matched. 

When the SUV was stopped, the officers found it occupied by

Kevin Spence (“Spence”), Hill, Plaintiff and Michelle Salamone

(“Salamone”). All four were ordered out of the SUV and searched;

the search produced a large amount of cash, numerous stolen

credit cards, fraudulent driver licenses and Social Security

documents issued to other persons’ names. All four were informed

of their Miranda v. Arizona, 384 U.S. 436 (1966), rights and

detained for further investigation. Hill entering a Miranda

waiver and made a statement about her extensive fraudulent credit

card schemes performed at various stores, hotels and casinos. 

She named Spence as her main co-conspirator but clarified that

Plaintiff was the key player in the schemes since he was the one

who produced all fraudulent drivers’ licenses (to which he was

adding Hill’s photo), and he was the one who stole the credit

3
cards at local movie theaters by crawling around on the floor and

going through the pocketbooks of movie-goers. 

Salamone, too, entered a Miranda waiver and made a statement

supporting Hill’s account and implicating Spence and Plaintiff.

Hill and Salamone also detailed Salamone’s role, which was very

limited, since Salamone met Hill, Spence and Plaintiff just two

days prior to the Wawa Store incident and, while she went with

them to a movie theater and took a road trip, she merely watched

a movie and slept during the trip. According to both Hill and

Salamone, Salamone’s sole involvement in the schemes was limited

to a single withdrawal of funds through the use of a credit card

Salamone either knew or suspected to be stolen; she handed the

entire withdrawal to Hill, Spence and Plaintiff.

Meanwhile, the police investigated the records of the SUV

and found out that it was taken by Plaintiff without the SUV’s

owner’s consent. Thus, the police obtained a search warrant as

to the SUV and searched it, discovering two drivers’ licenses

(one Kelden’s and the other falsely issued in Kelden’s name, with

Hill’s photo), a laptop with special plastic blanks used for

production of fraudulent driver’s licenses, and a Fargo Card

Printer (utilized to produce high-security documents verifying

one's identity) with a plastic card in it, having the back of a

New Jersey driver’s licence already printed on one side, but the

other side still left blank.

4
While Salamone was released, Hill, Spence and Plaintiff were

charged with criminal offenses. Eventually, all three entered

guilty pleas and were convicted; Plaintiff believes that Hill was

the State’s key witness in Plaintiff’s and Spence’s cases.1

Being already convicted in New Jersey, and then federally

convicted of analogous schemes he ran in other states, Plaintiff

commenced the civil matter at bar and eventually followed it with

the Johnson-II matter. 

In his complaint here, he alleged, inter alia, that: (a) he

was not given his Miranda rights; (b) his attorney conspired with

the prosecutor and the state judge to convict him; (c) the police

officers and the prosecutor must have engaged in selective

enforcement/selective prosecution because Salamone, a Caucasian,

was released, while Hill, an African-American, was charged; (d)

the SUV was stopped and Plaintiff was detained without probable

cause; (e) the prosecutor maliciously prosecuted him; (f) his

confrontation rights were violated by Salamone’s release; (g) his

prosecutor and defense attorney violated his rights individually,

in addition to their allegedly conspiratorial conduct, etc. See

Instant Matter, Docket Entry No. 1. 

1 Hill, being released on her own recognizance, violated

the terms of her release. She, however, was located and returned

in custody. At that point, she plead guilty and was sentenced.

5
However, unlike in Johnson-II, Plaintiff did not detail the

facts associated with his arrest and charges; rather, his

allegations were formulated in terms so vague that they created

an impression that no Wawa Store incident ever took place, that

Hill merely entered the Wawa Store for brief legitimate shopping,

that the SUV was stopped and its passengers were detained and

searched for no reason, that Salamone confessed to being an equal

player in Plaintiff-Hill-Spence’s schemes but, nonetheless, she

was released because she was Caucasian, that Hill, Plaintiff and

Spence, all African-American, were detained and charged, even

though they were not implicated in any wrong. See id. 

Taking Plaintiff’s allegations as true, this Court screened the

original complaint for sua sponte dismissal, addressing each of

Plaintiff’s many challenges at great length. For the reasons

detailed in the opinion docketed as Docket Entry No. 6, the Court

found all of Plaintiff’s challenges, short of those asserting

false arrest and selective enforcement, facially deficient and

dismissed them with prejudice. See also Docket Entry No. 7. The

Court, however, directed service as to Plaintiff’s false arrest

and selective enforcement claims.

Plaintiff thereafter made a multitude of filings in this

matter, substantially confusing the issues. See generally,

Docket. In addition, as noted supra, he commenced his Johnson-II

action. It was in the Johnson-II matter that Plaintiff detailed

6
the facts set forth in this Opinion, in other words, the facts

omitted from Plaintiff’s complaint filed in this matter.

Meanwhile, Judge Williams, addressed Plaintiff’s application

for appointment of pro bono counsel and, also taking Plaintiff’s

allegations as true, conducted the required analysis under Tabron

v. Grace, 6 F.3d 147, 153 (3d Cir. 1993), and directed

appointment of pro bono counsel. One week after moving for

appointment of pro bono counsel, Plaintiff filed his motion to

amend; that motion is currently before this Court. See Docket

Entry No. 62-1.

In his amended complaint, Plaintiff asserted that his arrest

must have been conducted without probable cause simply because he

told the arresting officer that he did “nothing wrong” and he and

Spence declined to give the police officers consent to search the

SUV when the SUV was stopped. See Docket Entry No. 62-1, at 2. 

In addition, he added a claim asserting that he was visually

strip-searched prior to being processed into a jail cell.2 See

id. at 3-4. He also alleged that “allowing Salamone to go free

violated [his] equal [protection] rights” since she “confessed to

using stolen credit cards,” and that fact could have been

sufficient for the police to file at least some charges against

2 Plaintiff also asserted “verbal harassment” maintaining

that the officers referred to him as “Johnny Cockerin.” Docket

Entry No. 62-1, at 7-8.

7
her. Id. at 9-10.3

 Plaintiff kept insisting that the police

were racially biased in its law enforcement. See id. at 10. In

conjunction with these allegations, Plaintiff reiterated his

already-dismissed conspiracy challenges against the prosecutor

and defense counsel.4

 See id. at 17. 

Since the standard employed in a sua sponte screening was

already detailed by this Court in its opinion docketed as Docket

Entry No. 6, at 4-6, another recital is not needed. Rather, this

Court find it warranted to recite the point stated in its

decision docketed as Docket Entry No. 84, at 13, i.e., that

Plaintiff’s statements made in Johnson-II and the exhibits relied

upon are subject to judicial notice in the instant matter. 

Hence, the Court now turns to analyzing the claims in Plaintiff’s

amended complaint, while reflecting on the same challenges, if

they were stated in the original complaint. 

Plaintiff’s false arrest challenges appear facially

meritless for the reasons already detailed in Johnson-II:

3 While Plaintiff now asserts that Hill advised the police

that “Salamone . . . performed several transactions at Walmart,

Target and Macy’s,” Docket Entry No. 62-1, at 9, the record upon

which Plaintiff relied in Johnson-II indicates that both Hill and

Salamone made statements only as to Salamone’s single withdrawal.

4 He also reiterated and paraphrased all aforesaid

allegations a number of times and, in addition, recited the

claims already dismissed by this Court with prejudice upon its

sua sponte screening of the original complaint.

8
Plaintiff's other claim, asserting that the SUV was

stopped and he was arrested without probable cause is

contradicted by the very exhibits upon which he relied

in his original and amended pleadings filed here, and

in his motions. “The proper inquiry in a Section 1983

claim based on false arrest is not whether the person

arrested in fact committed the offense but whether the

arresting officers had probable cause to believe the

person arrested had committed the offense.” Dowling v.

City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). 

“When an officer has probable cause to believe a person

committed even a minor crime, the balancing of private

and public interests is not in doubt and the arrest is

constitutionally reasonable.” Virginia v. Moore, 553

U.S. 164, 171 (2008). Correspondingly, a plaintiff must

state “the facts showing that, under the circumstances

within the officer's knowledge, a reasonable officer

could not have believed that an offense had been or was

being committed by the person to be arrested.” Mosley

v. Wilson, 102 F.3d 85, 94-5 (3d Cir. 1996); accord

Revell v. Port Authority of New York, New Jersey, 598

F. 3d 128, 137 n.16 (3d Cir. 2010). Here, Plaintiff's

exhibits show that the police officers stopped the SUV

and searched its occupants on the basis of the

information provided by the Wawa store manager about

Hill’s attempt to commit fraudulent purchases. That

information, in and by itself, already supplied a

sufficient probable cause for the stop and search. 

When the search produced a large amount of cash, stolen

credit cards, fraudulent driver licenses and Social

Security documents issued to other persons’ names, that

discovery, in and by itself, supplied a sufficient

probable cause for arrest of all four occupants, as

well as for investigation of the SUV. Thus,

Plaintiff’s [Johnson-II] exhibits filed here negate his

false arrest challenges. Accord Gutierrez v. Peters,

111 F.3d 1364, 1374 (7th Cir. 1997) (“A plaintiff can

plead himself out of court by alleging facts which show

that he has no claim. Allegations in a complaint or

relied upon in a complaint are binding admissions . . .

and admissions can of course admit the admitter to the

exit from the federal courthouse”) (quoting Jackson v.

Marion County, 66 F.3d 151, 153 (7th Cir. 1995)).

Docket Entry No. 84, at 17,18-19 (original brackets and ellipses

omitted).

9
Hence, these false arrest claims, which initially proceeded 

past the sua sponte screening stage on the grounds of Plaintiff’s

averment that the SUV was stopped and its occupants were searched

and arrested for no reason whatsoever, are insufficient to meet

the Iqbal test.5

Plaintiff’s somewhat related new claim, asserting a

violation of his rights on the basis of his visual strip-search

upon his processing to a jail cell is, too, facially meritless.6

5 Plaintiff’s “racial profiling” allegations asserted in

connection with the stop of the SUV, as well as search and

detention of the occupants, is devoid of any facts or logic,

since Salamone, a Caucasian, was in the SUV the police stopped,

and she was searched and detained for investigation as were the

other African-American occupants of the SUV. Moreover,

Plaintiff’s claim that the SUV was searched without probable

cause is, too, devoid of any facts or logic, since the record in

Johnson-II indicates that the SUV was searched upon a valid

warrant which, in and by itself, supplied probable cause.

6 Analogously, Plaintiff’s assertion that the police

referred to him as “Johnny Cockerin,” and Plaintiff perceived it

as a “racial slur,” fails to state a cognizable claim. See

Stepney v. Gilliard, 2005 U.S. Dist. LEXIS 31889, at *19 (D.N.J.

Dec. 8, 2005) (“Verbal harassment or profanity alone . . . no

matter how inappropriate, unprofessional, or reprehensible it

might seem, does not constitute the violation of any federally

protected right and therefore is not actionable under [Section]

1983") (quoting Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N. Y.

1998)); see also Robinson v. Taylor, 204 Fed. Appx. 155, 156 (3d

Cir. 2006)(“It is well settled that verbal harassment of a

prisoner, although deplorable, does not violate the Eigth

Amendment.”) Simply put, “[t]he Constitution protects rights and

freedoms, but it does not enshrine a code of personal civility.” 

Hogan v. Twp. of Haddon, 2006 U.S. Dist. LEXIS 87200, at *34

(D.N.J. 2006), aff’d, 278 F. App'x 98, 103 (3d Cir. 2008).

10
See Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d

296 (3d Cir. 2010), aff’d 132 S. Ct. 1510 (2012). 

Plaintiff’s selective enforcement claim also now appears

facially deficient in light of his exhibits in Johnson-II.7

While selective prosecution and selective enforcement are

different Fourteenth Amendment claims, see Dique v. New Jersey

State Police, 603 F.3d 181, 188 n.10 (3d Cir. 2010); Hill v. City

of Scranton, 411 F.3d 118, 125 (3d Cir. 2005), the substantive

standards governing these claims “are virtually identical.” 

Davis v. Malitzki, 451 F. App’x 228, 234, n.11 (3d Cir. 2011). 

Selective prosecution is a form of discriminatory law

enforcement that has been held to violate the Equal

Protection Clause of the Fourteenth Amendment since Yick

Wo v. Hopkins, 118 U.S. 356 (1886), which held officials

liable for “illegal discrimination” when they “applied

and administered” a facially neutral law “with an evil

eye and an unequal hand.” Two factors must be proved:

first, that persons similarly situated were not

prosecuted; second, that the decision to prosecute was

made on the basis of an unjustifiable standard, such as 

race . . . .” United States v. Schoolcraft, 879 F.2d

64, 68 (3d Cir. 1989) (per curiam). 

7 To the extent Plaintiff attempted to assert a claim on

the basis of the charges filed against Hill or Spence, Plaintiff

is without standing to raise such challenges. See Whitmore v.

Arkansas, 495 U.S. 149, 154-55 (1990); Steel Co. v. Citizens for

Better Environment, 523 U.S. 83, 102-103 (1998). The sole equal

protection claim Plaintiff may raise is that of him being charged

while Salamone was, allegedly, released. 

11
Id. at 234; accord Hill, 411 F.3d at 125 (selective enforcement

occurs when there are similarly situated persons against whom the

law was not enforced, and the official’s conduct is motivated by

an “unjustifiable standard”); see also Dique v. N.J. State

Police, 603 F.3d 181, 183, n.5 (3d Cir. 2010) (to establish a

selective-enforcement claim, a plaintiff must demonstrate that he

was treated differently from other similarly situated

individuals, and that this selective treatment was based on an

unjustifiable standard, such as race).

The record in Johnson-II demonstrates that Plaintiff’s

situation cannot be compared to that of Salamone. This record

shows that the police were informed, not only by Salamone but

also by Hill, that Plaintiff was the key player who stole the

credit and debit cards, produced false identification documents

and pocketed the illegal profit, while Salamone conducted one

withdrawal with a credit card she suspected to be stolen and

handed the illegal proceeds to Plaintiff, Hill and Spence. 

Therefore, Salamone was not similarly situated to Plaintiff;

moreover, she was not similarly situated either to Hill or

Spence, who – according to Hill – were the other two key players

and were engaged in lengthy, elaborate and extensive schemes.8

 

8 Plaintiff’s submissions in Johnson-II and statements made

in his amended complaint here suggest Plaintiff’s opinion that

the police could or should have investigated Hill and/or

Salamone’s statements as to the limited scope of Salamone’s

12
Hence, the police – or the prosecutor – exercised their

discretion in an unbiased way when they concluded that Salamone’s

involvement was too insignificant to charge her with a crime. 

Plaintiff’s selective enforcement claim, as elaborated upon now

in Johnson-II, fails to meet the Iqbal test.

By the same token, Plaintiff’s previously dismissed

conspiracy challenge as to Plaintiff’s attorney, his prosecutor

and the presiding state judge, which Plaintiff reasserts, remains

meritless. As this Court already explained, in order to prevail

on a conspiracy claim under §1983, a plaintiff must prove that

persons acting under color of state law conspired to deprive him

of a federally protected right. See Ridgewood Bd. of Educ. v.

N.E., 172 F.3d 238, 245 (3d Cir.1999).9 Here, Plaintiff’s

original and amended pleading fail to allege facts showing a

conspiracy. Rather, they offer only Plaintiff’s deducements that

involvement. However, the equal protection requirements do not

obligate state actors to seek evidence establishing that two

persons who appear differently situated might be similar

situated. In other words, the governing test is objective and it

turns on the information known to the state actors at the time of

their conduct, not on the hypothetical information that might or

might not be discovered. Cf. Salyer Land Co. v. Tulare Lake

Basin Water Storage Dist., 410 U.S. 719, 731(1973) (legal

“adjudication cannot rest on any such ‘house that Jack built’

foundation”). 

9

 Moreover, “the reach of section 1985(3) is limited to

private conspiracies predicated on ‘racial, or perhaps otherwise

class based, invidiously discriminatory animus.’” Lake v.

Arnold, 112 F.3d 682, 685 (3d Cir.1997) (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)).

13
the actions of his attorney, the prosecutor and the judge had to

be conspiratorial. See Docket Entry No. 84, at 9, 15-17 (setting

forth the governing legal test in detail and explaining the

invalidity of Plaintiff’s deducements under that test); accord

Iqbal, 129 S. Ct. at 1950 (“[the allegation was] not sufficient

to state a claim of . . . conspiracy because this allegation was

‘not only compatible with, but more likely explained by,’ lawful

behavior and therefore did not ‘plausibly suggest’ an unlawful

agreement”) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

565-67 (2007)). Plaintiff’s re-asserted conspiracy claims fail

to meet the Iqbal test.

As of now, read jointly with the entries Plaintiff docketed

in Johnson-II, Plaintiff’s amended complaint fails to state a

single cognizable claim and, in addition, renders his claims that

survived the sua sponte screening of his original complaint

facially meritless. Therefore, Plaintiff’s motion to amend will

be granted, and his amended and original complaints will be

dismissed now in their entirety. 

All of Plaintiff’s claims already dismissed by this Court

upon sua sponte screening will be re-dismissed once again, with

prejudice. Plaintiff will be barred from re-raising them anew;

the Court warns Plaintiff that his failure to comply with that

bar might result in sanctions, if warranted.

14
While Plaintiff’s false arrest and selective enforcement

challenges also appear facially meritless in light of Johnson-II,

this Court – solely out of an abundance of caution, – will allow

Plaintiff one final opportunity to show cause as to why these

false arrest and selective enforcement challenges should not be

conclusively dismissed for failure to state a claim. Plaintiff

will be directed to make solely factual assertions that are

consistent with the facts he offered into the record in JohnsonII. 

That conclusion prompts this Court to revisit the issue of

appointment of Plaintiff’s counsel. 

Under Tabron, the presence of a potentially meritorious

claim is a threshold requirement for appointment of

counsel. See Tabron, 6 F.3d at 156; Maclin [v.

Freake], 650 F.2d [885], 887 [ (7th Cir. 1981)]; Spears

[v. United States], 266 F. Supp. [22,] 25-26 [(S.D. W.

Va. 1967)]; accord Parham [v. Johnson], 126 F.3d [454,]

457 [(3d Cir. 1997)] (appointment of counsel is

warranted only if the pleading contains “some merit in

fact and law”). This gateway requirement is closely

intertwined with the prohibition on appointed counsel's

maintaining frivolous claims. “Under Anders v.

California, 386 U.S. 738 (1967), if court-appointed

‘counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise

the court and request permission to withdraw.’” United

States v. Parker, 487 F. App’x 41 (3d Cir. July 16,

2012) (quoting Anders, 386 U.S. at 744).

Bacon v. Mandell, 2012 U.S. Dist. LEXIS 132231, at *40-41

(D.N.J. Sept. 14, 2012) 

Thus, until and unless the Court satisfies itself that

Plaintiff stated a viable claim under Iqbal, continuation of

15
counsel’s appointment appears unwarranted.10 See Bacon v.

Mandell, 2013 U.S. Dist. LEXIS 162144, at *18-19 (D.N.J. Nov. 14,

2013). Hence, it will be suspended, subject to reinstatement in

the event Plaintiff shows cause as to why his false arrest and

selective enforcement challenges should not be conclusively

dismissed for failure to state a claim.

Judge Williams’ Order, see Docket Entry No. 86, allowing

Defendants to conduct Plaintiff’s deposition, will be stayed, to

prevent potentially unwarranted expenses and efforts on both

sides. Such stay will be subject to reactivation in the event

Plaintiff shows cause as to why his false arrest and selective

enforcement challenges should not be conclusively dismissed.11 

An appropriate Order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB 

10 The Court takes this opportunity to note its concern

since Plaintiff was less than forthcoming with both this Court

and Judge Williams when he concealed the facts he alleged in

Johnson-II and paraphrased his false arrest and selective

enforcement claims in a fashion inviting this Court and Judge

Williams to construe them as meeting the Iqbal requirement.

11 This matter will be administratively terminated, subject

to reopening upon receipt of Plaintiff’s response to the Court’s

Order to Show Cause. See Papotto v. Hartford Life & Accident

Ins. Co., 2013 U.S. App. LEXIS 19660, at *26 (3d Cir. N.J. Sept.

26, 2013) (“administrative closings . . . are a practical tool

used by courts to prune overgrown dockets and are particularly

useful in circumstances in which a case, though not dead, is

likely to remain moribund”). 

16
United States District Judge

Dated: January 10, 2014

17