NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

LAMONT LOVE, :

 :

Plaintiff, :

 :

v. :

 :

MIDDLESEX COUNTY PROS. :

OFFICE, et al., :

 :

Defendants. :

 :

Civil No. 11-4154 (PGS)

O P I N I O N

APPEARANCES:

Lemont Love, Pro Se

331321C

Northern State Prison

P.O. Box 2300

Newark, NJ 07114

SHERIDAN, District Judge

Plaintiff, Lemont Love, currently confined at the Northern

State Prison, Newark, New Jersey, has submitted this civil

complaint, which alleges violations of his constitutional rights

and seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has not

paid the filing fee, and seeks permission to proceed in forma

pauperis. Based on Plaintiff’s affidavit of indigence, this

Court will grant his request.

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

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 1 of 9 PageID: 31
is immune from such relief, pursuant to 28 U.S.C. §§ 1915(e)(2)

and 1915A(b). For the following reasons, the complaint will be

dismissed, with prejudice.1

BACKGROUND

Plaintiff names as defendants the Middlesex County

Prosecutor’s Office; Bruce Kaplan, the Prosecutor; Antonio Toto,

a defense attorney; Law Offices of Antonio Toto; Paula Dow, the

Attorney General (as supervisor of the Prosecutor’s Office); and

Christine D’Elia, Assistant Prosecutor of the Middlesex County

Prosecutor’s Office. 

Plaintiff’s claims concern his criminal trial. He states

that defendants maliciously prosecuted him, withheld exculpatory

evidence, failed to investigate and request discovery, and failed

to communicate with him during trial. (Statement of Claims, ¶

6). He seeks monetary damages and “to order injunctive relief

from being criminally tried in Middlesex County vicinage on

pending criminal trial . . . .” (Relief, ¶ 7).

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

 This Court notes that Plaintiff’s address is incorrectly 1

reflected on the docket, and will Order the Clerk of the Court to

make corrections.

2

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 2 of 9 PageID: 32
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. §§

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(b) because plaintiff is a prisoner and is proceeding as an

indigent.

Recently, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the

Supreme Court refined the standard for summary dismissal of a

complaint that fails to state a claim. 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 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 a summary

dismissal, a civil complaint must now allege "sufficient factual

matter" to show that the claim is facially plausible. This then

3

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 3 of 9 PageID: 33
"allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." See id. at

1948; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC

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

The Court of Appeals for the Third Circuit recently provided

detailed and highly instructive guidance as to what type of

allegations qualify as sufficient to pass muster under the Rule 8

pleading standard. See Phillips v. County of Allegheny, 515 F.3d

224, 230-34 (3d Cir. 2008). The Court of Appeals explained, in

relevant part:

[T]he pleading standard can be summed up thus: 

"stating ... a claim requires a complaint with enough

factual matter (taken as true) to suggest" the required

element. This "does not impose a probability

requirement at the pleading stage[ ]" but . . . "calls

for enough facts to raise a reasonable expectation that

discovery will reveal evidence of" the necessary

element.

Phillips, 515 F.3d at 234 (internal citations omitted). 

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). 

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C.

4

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 4 of 9 PageID: 34
§ 1983 for certain violations of his or her 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 ... .

Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff

must demonstrate that the challenged conduct was committed by (1)

a person acting under color of state law and (2) that the conduct

deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. See Parratt v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 

C. Plaintiff’s Claims Must Be Dismissed.

1. Prosecutorial Immunity

Plaintiff's claims against the prosecutor defendants

(Middlesex County Prosecutor’s Office, Kaplan, D’Elia and Dow,

must be dismissed because these defendants are absolutely immune

from liability.

“[A] state prosecuting attorney who act[s] within the scope

of his duties in initiating and pursuing a criminal prosecution”

5

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 5 of 9 PageID: 35
is not amenable to suit under § 1983. See 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. See 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, e.g., Kalina

v. Fletcher, 522 U.S. 118 (1997) (stating prosecutor testifying

as complaining witness rather than state's prosecutorial advocate

is protected only by qualified immunity for attesting to truth of

facts found in certification in support of arrest warrant);

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

during pretrial investigation is protected only by qualified

immunity); Buckley, 509 U.S. at 276-78 (prosecutor not acting as

advocate, and not entitled to absolute immunity, when holding

press conference or fabricating evidence).

Plaintiff's allegations concerning his criminal case fall

within the scope of prosecutorial duties in initiating and

pursuing a criminal prosecution. There is no allegation that the

6

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 6 of 9 PageID: 36
prosecuting defendants acted outside the scope of their

prosecutorial roles in the criminal proceedings against

Plaintiff, or of wrongdoing or prosecutorial misconduct. 

Therefore, the claims against these defendants must be dismissed

for failure to state a claim and because they are entitled to

absolute immunity.

2. Defense Attorneys are Not State Actors.

Plaintiff names Antonio Toto and his Law Office as

defendants. However, "a lawyer representing a client is not, by

virtue of being an officer of the court, a state actor ‘under

color of state law’ within the meaning of § 1983." Polk County

v. Dodson, 454 U.S. 312, 318 (1981). Similarly, 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." Dodson, 454 U.S. at 325. Accordingly,

Plaintiff’s claims against these defendants must be dismissed for

failure to state a claim. See also Steward v. Meeker, 459 F.2d

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

color of state law when representing client); Thomas v. Howard,

455 F.2d 228 (3d Cir. 1972) (court-appointed pool attorney does

not act under color of state law).

3. Claims as to Plaintiff's State Court Convictions Are

Barred.

Plaintiff appears to challenge his state court criminal

indictment and/or convictions. 

7

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 7 of 9 PageID: 37
First, it is unclear whether Plaintiff's state court action

has been concluded or is still pending. To the extent that the

state court action was concluded and Plaintiff is dissatisfied

with the outcome, his recourse is to directly appeal in state

court, and then, if he has constitutional challenges to his

conviction, file a habeas petition in this Court, pursuant to 28

U.S.C. § 2254. 

The exclusive federal remedy for an inmate challenging the

fact or duration of confinement is a petition for a writ of

habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973).

“[W]hen 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 imprisonment, his sole federal remedy

is a writ of habeas corpus.” Id. at 500; see Wolff v. McDonnell,

418 U.S. 539, 554 (1974); Brown v. Fauver, 819 F.2d 395 (3d Cir.

1987). Plaintiff cannot challenge his state court criminal

conviction in this § 1983 action.

Moreover, in Heck v. Humphrey, 512 U.S. 477 (1994), the

Supreme Court 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. Here, Plaintiff has not pled that

8

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 8 of 9 PageID: 38
he had any convictions or sentences overturned. Thus, his claims

are not ripe for consideration of monetary damages.

Further, if Plaintiff's state court action is still pending,

this Court must abstain from exercising jurisdiction under the

Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37

(1971). 

CONCLUSION

For the foregoing reasons, Plaintiff’s complaint is

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

and § 1915A(b)(1) and (2).

s/Peter G. Sheridan 

PETER G. SHERIDAN

United States District Judge

Dated: January 16, 2012

9

Case 3:11-cv-04154-PGS-DEA Document 5 Filed 01/17/12 Page 9 of 9 PageID: 39