NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

DARREL REEVES, :

 : Civil Action No.

Plaintiff, : 11-1741 (PGS)

 :

v. : O P I N I O N 

 :

OFFICE OF THE :

PUBLIC DEFENDER et al., :

 :

Defendants. :

_______________________________:

 

Peter G. Sheridan, District Judge:

Plaintiff Darrel Reeves (“Plaintiff”), a convicted prisoner

currently confined at the Hudson County Correctional Center,

Kearny, New Jersey, seeks to bring this 42 U.S.C. § 1983 action in

forma pauperis without prepayment of fees pursuant to 28 U.S.C. §

1915. Plaintiff submitted his application to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915(a) (1998). Plaintiff also

submitted for filing his complaint (“Complaint”). Plaintiff’s

Complaint named the following parties as Defendants in this action:

Hope Mitchell (“Mitchell,” public defender in Plaintiff’s criminal

case), Martha Royster (“Royster,” Mitchell’s supervisor), Yvonne

Smith Seagars (“Seagars,” Royster’s former supervisor), the Office

of Public Defender for the State of New Jersey, Frank Morono

(“Morono,” prosecutor of Plaintiff’s criminal case) and the Office

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of the Prosecutor (presumably, in the county of Morono’s employ). 

In addition, mentioned in the Complaint is a certain “Edward

DeFazo”; the reference suggests that Plaintiff is referring to

Edward J. DeFazio (“DeFazio,” the head of Hudson County Office of

the Prosecutor. 

Plaintiff’s Complaint asserts that: (a) Mitchell violated

Plaintiff’s civil rights by providing him with ineffective

assistance of counsel during Plaintiff’s criminal proceedings; (b)

Royster violated Plaintiff’s civil rights by being Mitchell’s

supervisor; (c) Seagars violated Plaintiff’s civil rights by being

Royster’s supervisor; (d) the Office of Public Defender violated

Plaintiff’s civil rights by being the entity employing Seagars,

Royster and Mitchell; (e) Morono violated Plaintiff’s civil rights

by relying, during Plaintiff’s prosecution, on the documentary

evidence which Plaintiff believed to be untrue, by not presenting

Plaintiff’s grand jury with the statements that Plaintiff would

have preferred disclosed and by not investigating the crime scene

in the fashion Plaintiff believed to be proper under the state

court rules; (f) De Fazio violated Plaintiff’s civil rights by not

fostering criminal proceedings against an individual who,

allegedly, assaulted and stole cash from Plaintiff; and (g) the

Office of the Prosecutor violated Plaintiff’s civil rights by being

the entity employing Morono and DeFazio. See Docket Entry No. 1,

at 2-4. Plaintiff seeks monetary damages. Id. at 6.

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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.

I. 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

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

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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.

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

This pleading standard was further refined by the United

States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),

where the Court observed:

[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

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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 label “general allegation"

[in hope to develop facts through discovery].

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

II. 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 . . . .

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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).

III. DISCUSSION

A. Entities Not Cognizable as Defendants in a § 1983 Action

Among Defendants named in this action are the State’s Office

of Public Defender and the State’s Office of the Prosecutor. These

Defendants, however, are not cognizable as “persons” subject to

suit under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State

Police, 491 U.S. 58 (1989); Monell v. Dep't of Social Services of

City of New York, 436 U.S. 658, 688-90 (1978); Martin v. Red Lion

Police Dep't, 146 F. App'x, 558, 562 n.3 (3d Cir. 2005); see also

Johnson v. Runyon, 1999 U.S. Dist. LEXIS 5748 (W.D. Mich. Apr. 22,

1999). 

Therefore, Plaintiff’s claims against these two Defendants are

subject to dismissal. Such dismissal will be with prejudice since

the status of these two Defendants as entities not cognizable as

“persons” for the purposes of Section 1983 suit cannot change.1

 Alternatively, Plaintiff’s challenges are subject to 1

dismissal under the Eleventh Amendment. A suit may be barred by

the Eleventh Amendment even though a state is not named a party

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B. Respodeat Superior Claims

Two other Defendants named in this action Royster and Seagars. 

The Complaint asserts that these Defendants violated Plaintiff’s

civil rights by being direct/indirect supervisors of Mitchell. 

Supervisors, however, were never held liable under § 1983

solely on the basis of the theory of respondeat superior. See City

of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell,

436 U.S. at 690-91, 694 (1978); Natale v. Camden County

Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). 

Indeed, it is conclusively established that “[g]overnment officials

may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Iqbal, 129 S.

Ct. at 1948. Thus, “a plaintiff must plead that each [g]overnment

official, through the official's own individual actions, has

violated the Constitution.” Id. 

Here, Plaintiff asserts that Royster and Seagars are liable to

Plaintiff merely because they were Mitchell’s supervisors and

because Royster was the addressee of Plaintiff’s statements

expressing his displeasure with Mitchell. These allegations are

to the action as long as the state is the real party in interest.

See Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659

(3d Cir. 1989) (citing Edelman v. Jordan, 415 U.S. 651, 663

(1974)). For instance, a prosecutor's office, when acting in its

law enforcement capacity, is an arm of the State. See Wright v.

State, 169 N.J. 422, 455 (2001). Thus, a suit against such

office is a suit against the State itself and is prohibited by

the Eleventh Amendment immunity. See MCI Telecomm. Corp. v. Bell

Atl.-Pa. Serv., 271 F.3d 491, 503 (3d Cir. 2001).

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insufficient to state a claim under § 1983, as the Supreme Court

has specifically rejected the theory that “a supervisor's mere

knowledge of his subordinate's [actions] amounts to the

supervisor's violating the Constitution.” Iqbal, 129 S. Ct. at

1949. Therefore, Plaintiff’s claims against Royster and Seagars

will be dismissed for failure to state a claim upon which relief

can be granted. Such dismissal will be with prejudice since the

Complaint makes it abundantly clear that Plaintiff’s challenges

against Royster and Seagars are not based on these two Defendants’

personal involvement in the wrongs allegedly suffered by Plaintiff.

C. Claims Against DeFazio and Morono

The next two Defendants named in this action are Morono, the

prosecutor pursuing criminal charges against Plaintiff on behalf of

the State, and DeFazio, the head of Hudson County Prosecutor’s

Office.

With Regard to DeFazio, Plaintiff asserts that Plaintiff’s

“equal protection” rights were violated because a criminal

complaint was allegedly filed against a certain individual who, the

Complaint maintains, assaulted Plaintiff and stole cash from

Plaintiff, but –- according to the Complaint –- that individual was

not prosecuted. However, prosecutors are also absolutely immune

from actions under § 1983 for “initiating and pursuing a criminal

prosecution.” Kalina v. Fletcher, 522 U.S. 118 (1997) (quoting

Imbler v. Pachtman, 424 U.S. 409 (1976)). Correspondingly, the

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prosecutors are immune from Section 1983 claims based on their

exercise of prosecutorial discretion, see Yarris v. County of

Delaware, 465 F.3d 129, 135 (3d Cir. 2006); Imbler v. Pachtman, 424

U.S. 409 (1976), including their decisions not to pursue criminal

charges. 

It requires no extended argument to establish that

prosecutors do not deviate from "fundamental conceptions

of justice" when they defer seeking indictments until

they have probable cause to believe an accused is guilty;

indeed it is unprofessional conduct for a prosecutor to

recommend an indictment on less than probable cause.

[See] ABA Code of Professional Responsibility DR

7-103(A); ABA Project on Standards for Criminal Justice,

The Prosecution Function § 3.9 (App. Draft 1971). It

should be equally obvious that prosecutors are under no

duty to file charges as soon as probable cause exists but

before they are satisfied they will be able to establish

the suspect's guilt beyond a reasonable doubt. To impose

such a duty “would have a deleterious effect both upon

the rights of the accused and upon the ability of society

to protect itself,” United States v. Ewell, [383 U.S.

116,] 120 [(1966)]. From the perspective of potential

defendants, requiring prosecutions to commence when

probable cause is established is undesirable because it

would increase the likelihood of unwarranted charges

being filed, and would add to the time during which

defendants stand accused but untried. [Indeed, t]o the

extent that the period between accusation and trial has

been strictly limited by legislative action, see, e.g.,

Speedy Trial Act . . . , 18 U.S.C. § 3161, compelling

immediate prosecutions upon probable cause would not add

to the time during which defendants stand accused, but

would create a risk of guilty persons escaping punishment

simply because the Government was unable to move from

probable cause to guilt beyond a reasonable doubt in the

short time available to it. . . . .

United States v. Lovasco, 431 U.S. 783, 791 (1977).

Therefore, Plaintiff’s claims against DeFazio are subject to

dismissal as challenges against a person immune from the suit.

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Analogously, Plaintiff’s claims against Morono based on

Morono’s actions during his prosecution of the charges against

Plaintiff are barred by Morono’s immunity. “[A]cts 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).2

Consequently, Plaintiff’s claims against DeFazio and Morono

will be dismissed. Such dismissal will be with prejudice since the

Complaint is unambiguous in its assertions that DeFazio and Morono

are sued in connection with their activities as advocates for the 

State or as law enforcement officers. 

D. Claims Against Mitchell

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

 Plaintiff’s position that Morono should have disclosed 2

certain evidence to the grand jury or should not have relied on

certain documentary evidence, or should have studied the crime

scene better does not change the outcome of this Court’s

analysis, since even a “deliberate withholding of exculpatory

information is included within the legitimate exercise of

prosecutorial discretion.” Yarris, 465 F.3d at 137; see also

Imbler, 424 U.S. at 431-32 n. 34.

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rights; rather, it provides an avenue of recovery for the

deprivation of established federal 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

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

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

1995). Therefore, Plaintiff’s claims against Defendant Mitchell 

will be dismissed for Plaintiff’s failure to satisfy the color of

law requirement. Such dismissal will too be with prejudice, since

the Complaint is clear as to Plaintiff’s intent to sue Mitchell for

the legal assistance she provided to him during Plaintiff’s

criminal proceedings.3

IV. PLAINTIFF’S LETTERS

Finally, the Court takes notice of Plaintiff’s two letters

submitted in this action. See Docket Entries Nos. 2 and 3. 

In these letters, Plaintiff seeks an opportunity to correct

his pleadings in the event the Court determines that Plaintiff’s

Complaint is subject to dismissal for failure to state a claim upon

which relief can be granted, as it is the case here. In addition,

Plaintiff seemingly requests this Court’s guidance as to how to

cure his pleadings in order to state a viable claim.

With regard to Plaintiff’s latter request, if such was

intended, the Court is without mandate to assist Plaintiff. 

 The Court’s dismissal of Plaintiff’s civil rights 3

challenges does not prevent Plaintiff from seeking habeas relief

on the basis of his challenges to Mitchell’s legal assistance. 

The Court, however, stresses that no statement made in this

Opinion shall be construed as stating this Court’s position as to

substantive or procedural validity or invalidity of Plaintiff’s

challenges in the event Plaintiff elects to institute habeas

proceedings.

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“District judges have no obligation to act as counsel or paralegal

[even] to pro se litigants,” Pliler. v. Ford, 542 U.S. 225, 231-32

(2004), and the Court’s legal assistance to Plaintiff would render

the Court biased. See 28 U.S.C. § 455(a); Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 860 (1988); In re

Kensington Intern. Ltd., 368 F.3d 289, 301 (3d Cir. 2004); see also

U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995); Clemens v. United

States District Court for the Central District of California, 428

F.3d 1175, 1178 (9th Cir. 2005); Matter of Mason, 916 F.2d 384, 386

(7th Cir. 1990). Simply put, Plaintiff is the sole “master of the

case.”

Moreover, Plaintiff’s request for an opportunity to cure his

pleadings caused the Court a pause. Generally, even “[w]hen a

plaintiff does not seek leave to amend a deficient complaint . . .

, the Court must inform the plaintiff that he has leave to amend

within a set period of time,” Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002), that is, “unless amendment would be

. . . futile.” Id.; see also Foman v. Davis, 371 U.S. 178, 182

(1962) (ordinarily, the plaintiff may be granted “leave [to amend,]

. . . when justice so requires”); In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (futility of

amendment occurs when the complaint, even if amended, would not be

able to state a claim upon which relief can be granted).

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Here, Plaintiff’s allegations indicate, with utmost clarity,

that he is suing either entities not amenable to § 1983 suit, or

persons whose challenged actions fall within the realm of absolute

immunity, or persons involved in the events alleged in the

Complaint solely under the respondeat superior theory, or the

person with regard to whom Plaintiff cannot meet the color of law

requirement. In other words, the challenges stated in the

Complaint (and massive exhibits attached to it) strongly indicate

that granting Plaintiff leave to amend his Complaint would be

futile. However, in light of Plaintiff’s application, this Court 4

–- out of abundance of caution –- will grant Plaintiff an

opportunity to submit an amended complaint. The Court, however,

stresses, that such leave shall not be construed as an invitation

to relitigate the claims found subject to dismissal in this

Opinion, and such amended pleadings should be based on the core

events asserted in Plaintiff’s instant Complaint. 

 While the Court is cognizant that Plaintiff can state, in 4

his amended complaint, challenges based on events entirely

different from those asserted in the Complaint at bar, the

Court’s leave to amend cannot be used that way, accord Mayle v.

Felix, 545 U.S. 644, 661-62 (2005) (an amended pleading must

relate to an original pleading; such relation is satisfied only

if both pleadings “state claims that are tied to a common core of

operative facts”), since allowing such “amendment” would: (a)

effectively permit a litigant to prosecute two entirely different

actions in the same proceeding, in violation of the filing fee

statute; or (b) if the original and amended complaint are

construed as a single pleading (rather than a chain of

superceding pleadings), such “conflated” pleading would violate

the requirements of Rules 18 and 20. 

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V. CONCLUSION

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

application to file the Complaint in forma pauperis and will

dismiss the Complaint, Docket Entry No. 1. All Plaintiff’s claims

addressed in this Opinion will be dismissed with prejudice.

The Court will construe Plaintiff’s letters, Docket Entries

Nos. 2 and 3, as a motion seeking leave to amend Plaintiff’s

instant Complaint. Such motion will be granted, and Plaintiff will

be allowed to file an amended complaint, provided that such amended

complaint is executed in compliance with the Court’s guidance

provided to Plaintiff in this Opinion. 

An appropriate order accompanies this Opinion.

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

May 25, 2011

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