NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

LAWRENCE J. COHEN, :

 :

Plaintiff, :

 :

v. :

 :

LUIS A VALENTIN, et al., : 

 :

Defendants. :

 :

Civil No. 11-1942 (PGS)

OPINION

SHERIDAN, U.S.D.J. 

Plaintiff, Lawrence J. Cohen, a state inmate confined at the

Monmouth County Correctional Institution in Freehold, New Jersey,

at the time he submitted the above-captioned Complaint for

filing, seeks to bring this action in forma pauperis. Based on

his affidavit of indigence, the Court will grant plaintiff’s

application to proceed in forma pauperis (“IFP”) pursuant to 28

U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file

the Complaint.

At this time, this Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the

Complaint 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 reasons set forth below, the Court

concludes that the Complaint should be dismissed with prejudice.

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I. BACKGROUND

Plaintiff, Lawrence J. Cohen (“Cohen”), brings this civil

action, pursuant to 42 U.S.C. § 1983, against the following

defendants: the Luis A. Valentin, Prosecutor; Kevin Clark,

Assistant Prosecutor; John Sosdian, Asbury Park Police Detective;

and Donna Wrenn, Public Defender Office. (Complaint, Caption and

¶ 4b). The following factual allegations are taken from the

Complaint, and are accepted for purposes of this screening only. 

The Court has made no findings as to the veracity of plaintiff’s

allegations.

Cohen alleges that the defendant prosecuting attorneys and

police detective “openly lied in court” before a judge and grand

jury so as to obtain an arrest warrant, search warrants and an

indictment. Cohen also appears to assert a claim of ineffective

assistance of counsel against his public defender, Donna Wrenn. 

Cohen does not specify the type of relief he seeks in his

Complaint, i.e., whether it is for monetary damages, declaratory

relief or injunctive relief.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

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

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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. 28 U.S.C. §§

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) an 

§ 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it 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. 

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).

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A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. 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 relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

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

 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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cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

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

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

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Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

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

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

 In Conley, as stated above, a district court was 2

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

III. SECTION 1983 ACTIONS

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 

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

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

1994).

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IV. ANALYSIS

A. Prosecutorial Immunity

Cohen asserts a claim against the prosecutor defendants,

Luis A. Valentin and Kevin Clark, with respect to their handling

of recent arrest and search warrants and indictment of plaintiff. 

To the extent that Cohen is asserting that these defendants

violated his constitutional rights in their prosecution of Cohen,

such claim must be dismissed.

“[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). Thus, a prosecutor’s appearance in court

as an advocate in support of an application for a search warrant

and the presentation of evidence at such a hearing are protected

by absolute immunity. Burns v. Reed, 500 U.S. 478, 492 (1991). 

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).

A prosecutor is not entitled to absolute immunity, however,

for actions undertaken in some other function. See Kalina v.

Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by

qualified immunity for attesting to the truth of facts contained

in certification in support of arrest warrant, as in her

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provision of such testimony she functioned as a complaining

witness rather than a prosecutorial advocate for the state);

Burns, 500 U.S. at 492-96 (the provision of legal advice to

police during pretrial investigation is protected only by

qualified immunity); Buckley, 409 U.S. at 276-78 (prosecutor is

not acting as an advocate, and is not entitled to absolute

immunity, when holding a press conference or fabricating

evidence). See also Yarris v. County of Delaware, 465 F.3d 129

(3d Cir. 2006)(where the Court of Appeals for the Third Circuit

presents a detailed and nuanced analysis of when a prosecuting

attorney is, and is not, entitled to absolute immunity for

allegedly wrongful acts in connection with a prosecution,

holding, for example, that a prosecutor is not entitled to

absolute immunity for deliberately destroying highly exculpatory

evidence, but is entitled to immunity for making the decision to

deliberately withhold exculpatory evidence before and during

trial, but not after the conclusion of adversarial proceedings).

Here, Cohen’s allegations against these prosecutorial

defendants plainly fall within the scope of their prosecutorial

duties in initiating and pursuing a criminal prosecution against

plaintiff. There are no allegations that appear to fall outside

the scope of the defendants’ prosecutorial role, and this Court

is hard-pressed to find any allegation of wrongdoing or

prosecutorial misconduct of any kind.

B. Claim Against Public Defender Defendant

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Next, Cohen appears to assert a claim against his assigned

counsel from the Public Defender’s Office, defendant Donna Wrenn,

alleging ineffective assistance of counsel during plaintiff’s

state court criminal proceedings in violation of his Sixth

Amendment rights. This claim is not actionable at this time in a

§ 1983 action. First, defendant is not subject to liability

under § 1983 because she is not a state actor. A public defender

“does not act under color of state law when performing a lawyer’s

traditional functions as counsel to a defendant in a criminal

proceeding.” Polk Co. v. Dodson, 454 U.S. 312, 325 (1981) (a

public defender performing a lawyer’s traditional functions as

counsel to a defendant, such as determining trial strategy and

whether to plead guilty, is not acting under color of state law);

Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed

pool attorney does not act under color of state law). Even if

defendant was a privately retained lawyer, she would not be

subject to liability under § 1983. Steward v. Meeker, 459 F.2d

669 (3d Cir. 1972) (privately-retained counsel does not act under

color of state law when representing client).

Moreover, even if Cohen had pleaded facts establishing that

his attorney was acting under color of state law, any claim

concerning a violation of plaintiff’s right to effective

assistance of counsel must first be raised in plaintiff’s ongoing

state criminal proceedings. A federal court generally will not

intercede to consider issues that the plaintiff has an

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opportunity to raise before the state court. See Younger v.

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

Further, to the extent that Cohen’s criminal trial is no

longer pending, and he has been sentenced on any state charges,

which is not apparent from the Complaint, any claim of

ineffective assistance of counsel in this regard must first be

exhausted via state court remedies, i.e., by direct appeal or

other available state court review; and then, if appropriate, by

filing a federal habeas application, under 28 U.S.C. § 2254, to

assert any violations of federal constitutional or statutory law,

namely, his claim of ineffective assistance of counsel. Preiser

v. Rodriguez, 411 U.S. 475 (1973). 

Therefore, plaintiff’s Complaint asserting any liability

against defendant Wrenn under § 1983, as to an ineffective

assistance of counsel claim, must be dismissed for failure to

state a claim at this time, pursuant to 28 U.S.C. §§ 1915A(b)(1)

and 1915A(b)(1).

C. Claim Against Defendant Sosdian

Finally, it appears that Cohen is asserting a claim against

Asbury Park Police Detective Sosdian with regard to his alleged

false testimony and documents at plaintiff’s state criminal trial

proceedings, namely, before the grand jury and other initial

proceedings in court. Thus, to the extent that the Complaint

against Sosdian is based on the officer’s testifying falsely

before a grand jury or a court, such claims must be dismissed

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because a witness enjoys absolute immunity from damages under §

1983 for false testimony. See Briscoe v. LaHue, 460 U.S. 325,

330-346 (1983)(police officer who testifies in criminal trial

enjoys absolute witness immunity for false testimony); Kulwicki

v. Dawson, 969 F.2d 1454, 1467 and n. 16 (3d Cir.1992)(witness

who testifies in judicial proceeding is absolutely immune for

false testimony); Williams v. Hepting, 844 F.2d 138, 143 (3d

Cir.1988) (witness is entitled to absolute immunity from civil

liability under § 1983 for perjured testimony at preliminary

hearing and suppression hearings).

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice, in its entirety, as against all

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

1915A(b)(1), for failure to state a claim upon which relief may

be granted at this time. An appropriate order follows.

s/Peter G. Sheridan 

PETER G. SHERIDAN

United States District Judge

Dated: May 3, 2012

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