NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KAREEM COLVIN, :

: Civil Action No. 11-2852 (RBK)

Plaintiff, :

:

v. : OPINION

:

EDWARD J. MCBRIDE, JR., et al.:

:

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.

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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. For the following reasons,

Plaintiff’s complaint will be dismissed. 

BACKGROUND

The following factual allegations are taken from Plaintiff’s

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

Plaintiff indicates on his Complaint that he is a pre-trial

detainee confined at Camden County Correctional Facility, though

the facts presented suggest that the underlying criminal matter

has come to a conclusion and that he has been sentenced. 

Plaintiff seeks to raise claims against Edward J. McBride,

the judge who presided over his criminal case, and Lauren Wojcik,

the prosecutor who handled the criminal matter against Plaintiff. 

He alleges that on April 5, 2010 he was subpoenaed for an April

9, 2010 court appearance for indictment #2269-06-09. He states

that when he appeared in court the indictment number on his copy

of the discovery was not the same number on the subpoena. He

alleges that later he discovered that the indictment number on

the subpoena was for a charge that had been dismissed on June 12,

2009. He alleges that he brought this information to the

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attention of the court but no action was taken to correct the

indictment number. 

Plaintiff states that he was “forced” to take a “364” on

June 28, 2010, and was to be sentenced on August 20, 2010. He

alleges that his sentencing date was postponed on various

occasions. Plaintiff was ultimately sentenced by Defendant

McBride on January 14, 2011 for a charge which he alleges had

been dismissed. 

There are no factual allegations in the body of the

Complaint against Defendant Wojcik.

Plaintiff seeks compensatory damages for the time period of

March 17, 2010, the beginning of his incarceration, until January

14, 2011, the date of his sentencing. 

DISCUSSION

A. Standard of Review

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. See 28 U.S.C. §§

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1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and

1915A, because plaintiff is a prisoner and is proceeding as an

indigent. 

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe 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. 

The Supreme Court refined this standard for summary

dismissal of a complaint that fails to state a claim in the

matter of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). 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

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relief. See Fed. R. Civ. P. 8(a)(2). Citing its opinion in 1

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

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 held that, to

prevent summary dismissal, a civil complaint must now allege

“sufficient factual matter” to show that the claim is facially

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

inference that the defendant is liable for the misconduct

alleged.” See id. at 1948. The Supreme Court’s ruling in Iqbal

emphasizes that a plaintiff must demonstrate that the allegations

of his complaint are plausible. See id. at 1949-50; see also

Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, 578

F.3d 203, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). 

B. 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

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

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

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

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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).

C. Plaintiff’s Claims

In a series of cases beginning with Preiser v. Rodriquez,

411 U.S. 475 (1973), the Supreme Court has analyzed the

intersection of 42 U.S.C. § 1983 and the federal habeas corpus

statute, 28 U.S.C. § 2254. In Preiser, state prisoners who had

been deprived of good-conduct-time credits by the New York State

Department of Correctional Services as a result of disciplinary

proceedings brought a § 1983 action seeking injunctive relief to

compel restoration of the credits, which would have resulted in

their immediate release. See 411 U.S. at 476. The prisoners did

not seek compensatory damages for the loss of their credits. See

411 U.S. at 494. The Court held that “when a state prisoner is

challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he

is entitled to immediate release or a speedier release from that

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imprisonment, his sole federal remedy is a writ of habeas

corpus.” Id. at 500. 

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court

addressed a corollary question to that presented in Preiser,

whether a prisoner could challenge the constitutionality of his

conviction in a suit for damages only under § 1983, a form of

relief not available through a habeas corpus proceeding. Again,

the Court rejected § 1983 as a vehicle to challenge the

lawfulness of a criminal judgment. 

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid

by a state tribunal authorized to make such a determination,

or called into question by a federal court’s issuance of a

writ of habeas corpus, 28 U.S.C. § 2254. A claim for

damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under § 1983. 

512 U.S. at 486-87 (footnote omitted). The Court further

instructed district courts, in determining whether a complaint

states a claim under § 1983, to evaluate whether a favorable

outcome would necessarily imply the invalidity of a criminal

judgment. 

Thus, when a state prisoner seeks damages in a § 1983 suit,

the district court must consider whether a judgment in favor

of the plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated. But if

the district court determines that the plaintiff’s action,

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even if successful, will not demonstrate the invalidity of

any outstanding criminal judgment against the plaintiff, the

action should be allowed to proceed, in the absence of some

other bar to the suit. 

512 U.S. at 487 (footnotes omitted). The Court further held that

“a § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated.” Id. at 489-90.

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme

Court applied the lessons of Preiser and Heck to a state prisoner

action, seeking compensatory and punitive damages, challenging

the constitutionality of procedures used in a prison disciplinary

proceeding that resulted in the loss of good-time credits, but

not necessarily challenging the result and not seeking the

restoration of the good-time credits. Again, the Court

emphasized that such a claim is not cognizable under § 1983 if a

favorable outcome would necessarily imply the invalidity of the

challenged judgment, there the disciplinary finding and

punishment. See 520 U.S. at 646-48.

“Considering Heck and summarizing the interplay between

habeas and § 1983 claims, the Supreme Court recently explained

that, ‘a state prisoner’s § 1983 action is barred (absent prior

invalidation) - no matter the relief sought (damages or equitable

relief), no matter the target of the prisoner’s suit (state

conduct leading to conviction or internal prison proceedings) -

if success in that action would necessarily demonstrate the

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invalidity of the confinement or its duration.’” Williams v.

Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (quoting Wilkinson v.

Dotson, 544 U.S. 74, 81-82 (2005)).

Here, Plaintiff’s sole request is for damages. Accordingly,

any § 1983 action challenging the proceedings is premature until

such time as the proceedings have been otherwise invalidated. 

Furthermore, in the alternative, Plaintiff’s claims must be

dismissed as they have been filed against defendants who are

immune from suit. Plaintiff’s claims against Judge Edward

McBride, Jr. must be dismissed since judges are immune from suit

under § 1983. See Mireles v. Waco, 502 U.S. 9 (1991) (holding

that judges are entitled to absolute immunity from § 1983 suits

based on actions taken in their official capacity). Also, as to

prosecutor Lauren Wojcik, “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). 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). See also Burns v. Reed, 500 U.S. 478, 490

n.6 (1991) (noting that “there is widespread agreement among the

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Courts of Appeals that prosecutors are absolutely immune from

liability under § 1983 for their conduct before grand juries”).

Here, the allegations of wrongful conduct include only

actions taken by the judge in his official capacity, and the

prosecutor that were within the scope of her duty as an advocate

of the State. Accordingly, these defendants are entitled to

absolute immunity for those actions, and will be dismissed from

this case on these alternative grounds as well. 

CONCLUSION

For the reasons set forth above, the Complaint must be

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

failure to state a claim, and 28 U.S.C. §§ 1915(e)(2)(B)(iii),

for seeking relief from immune defendants. 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: January 24, 2012

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