NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

WILLIAM DYKEMAN, :

:

Plaintiff, :

:

v. :

:

ALAN I. SMITH, et al., :

:

Defendants. :

 :

Civil No. 11-3608 (SDW)

OPINION

APPEARANCES:

WILLIAM DYKEMAN, #32687

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625 

WIGENTON, District Judge

Plaintiff William Dykeman, a prisoner incarcerated at New Jersey State Prison, seeks to

file a Complaint against designated appellate counsel Alan I. Smith and two supervisors at the

Public Defender’s Office in Newark, New Jersey, for violation of his constitutional rights,

pursuant to 42 U.S.C. § 1983. Based on Plaintiff’s affidavit and prison account statement, this

Court will grant Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C. §

1915. As required by 28 U.S.C. § 1915(e)(2)(B), this Court has screened the Complaint for

dismissal and, for the reasons set forth below, will dismiss the Complaint for failure to state a

claim upon which relief may be granted. 

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I. BACKGROUND

Plaintiff asserts that the New Jersey Public Defender designated Alan I. Smith to

represent him on direct appeal from a criminal conviction docketed A-445-05T4. Plaintiff

maintains that Mr. Smith’s performance was deficient and inadequate:

At bar, assigned counsel, Mr. Smith: (A) failed to communicate at

all with Plaintiff, in spite of numerous attempts; (B) filed an

erroneous and palpably defective brief, which the court would not

allow to be withdrawn, seriously jeopardizing plaintiff’s appeal;

(C) failed to present the most promising structural federal and state

constitutional arguments, to the demise of his client; (D) failed to

properly take the appropriate legal actions to fix his own errors in a

timely and responsible way; (E) continued to act in a haphazard

and reckless manner throughout numerous stages of the appellate

process, or take appropriate responsibility; (F) risked his client

being procedurally barred at subsequent appellate hearings and

stages by not raising these promising arguments in the first step of

the appellate process; and (G) did other things, which proper

discovery and/or briefing will bring out, that fell below any

reasonable objective criteria for what would be effective assistance

of counsel on the first direct appeal as of right. (legal malpractice).

(Docket Entry No. 1, pp. 3-4.)

Plaintiff further asserts that, as a result of assigned counsel’s poor brief, on March 4,

2009, the New Jersey Supreme Court affirmed his conviction in Docket No. A-445-05T4. 

Plaintiff also sues Jodi Ferguson, a supervisor in the Newark Office of the Public Defender

because “she has responsibility to properly oversee affairs stemming from her Newark Office,”

and Linda Biancardi, the Appellate Deputy of the Newark Office, because she should have

known that unconstitutional practices were routinely occurring in direct appeals brought by

indigent criminal defendants. (Docket Entry No. 1, p. 2.) 

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II. 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 screen a complaint in a civil

action in which a plaintiff is proceeding in forma pauperis or a prisoner sues a government entity

or employee, and to sua sponte dismiss any claim if the Court determines that it is frivolous,

malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), hammered 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), which was

1

previously applied to determine if a federal complaint stated a claim. See Fowler v. UPMC

Shadyside, 578 F.3d 203 (3d Cir. 2009). The pleading standard under Rule 8 was refined by the

United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

v. Iqbal, 129 S. Ct. 1937 (2009), where the Supreme Court clarified as follows:

Two working principles underlie our decision in Twombly. 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 marks a

notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it 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

 The Conley court held that a district court was permitted to dismiss a complaint for 1

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.” Conley v. Gibson, 355 U.S. at

45-46. 

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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).

In keeping with these principles 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 1949 -1950 (citations omitted). 

The Court is mindful that the sufficiency of this pro se pleading must be construed

liberally in favor of the plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007). 

III. DISCUSSION

Federal courts are courts of limited jurisdiction. See Mansfield, C. & L. M. Ry. Co. v.

Swan, 111 U.S. 379, 383 (1884). “[T]hey have only the power that is authorized by Article III of

the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport

Area School Dist., 475 U.S. 534, 541 (1986). A district court may exercise original jurisdiction

over “Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under their authority.” U.S. Const. art. III., § 2; see

also 28 U.S.C. § 1331. Section 1983 of Title 42 of the United States Code authorizes a person

such as Plaintiff to seek redress for a violation of his federal civil rights by a person who was

acting under color of state law. 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

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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. 

42 U.S.C. § 1983.

To recover under 42 U.S.C. § 1983, a plaintiff must show two elements: (1) a person

deprived him or caused him to be deprived of a right secured by the Constitution or laws of the

United States, and (2) the deprivation was done under color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Sample v.

Diecks, 885 F.2d 1099, 1107 (3d Cir. 1989). 

Plaintiff’s § 1983 claims against counsel designated by the Public Defender and officials

in the Newark Office of the Public Defender fail as a matter of law because defendants were not

acting under color of state law. “Although a private [person] may cause a deprivation of . . . a

right, [he] may be subjected to liability under § 1983 only when [he] does so under color of law.”

Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) (quoting Flagg Brothers, Inc. v.

Brooks, 436 U.S. 149, 156 (1978)). In Polk County v. Dodson, 454 U.S. 312 (1981), the

Supreme Court held that a public defender, although paid and ultimately supervised by the state,

does not act under color of state law when performing the traditional functions of counsel to a

criminal defendant. See also Vermont v. Brillon, 129 S. Ct. 1283, 1291 (2009) (“Unlike a

prosecutor or the court, assigned counsel ordinarily is not considered a state actor”); Angelico v.

Lehigh Valley Hospital, Inc., 184 F.3d 268, 277 (3d Cir. 1999) (private attorneys were not acting

under color of state law when they issued subpoenas); Calhoun v. Young, 2008 WL 2944638 (3d

Cir. Aug. 1, 2008) (public defender representing criminal defendant is not acting under color of

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state law). Because the acts and omissions by defendants complained of in the Complaint 

concern the traditional functions of criminal appellate counsel, defendants were not acting under

color of state law, and the Complaint fails to state a claim under 42 U.S.C. § 1983. Because the 2

named defendants are not subject to suit under § 1983 for alleged violation of Plaintiff’s

constitutional rights, this Court will dismiss the Complaint for failure to state a claim upon which

relief may be granted.3

IV. CONCLUSION

The Court grants Plaintiff’s application to proceed in forma pauperis and dismisses the

Complaint. 

s/Susan D. Wigenton 

SUSAN D. WIGENTON, U.S.D.J.

Dated: July 14, 2011

 To the extent that Plaintiff seeks injunctive relief for alleged continuing constitutional 2

deprivations regarding his representation in an on-going criminal case, such relief is not available

in this Court. See O’Shea v. Littleton, 414 U.S. 488, 496 (1974) (citing Younger v. Harris, 401

U.S. 37 (1971)); Calhoun, 2008 WL 2944638 at n.3.

 This Court is mindful that it may not dismiss a complaint without providing leave to 3

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). In this case, nothing alleged by Plaintiff insinuates that he could cure the deficiencies in

the Complaint by amending it. Accordingly, this Court will dismiss without granting leave to file

an amended complaint.

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