*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

ANTHONY JOHNSON, :

 :

Plaintiff, :

 :

v. :

 :

CAMDEN COUNTY PROSECUTORS’ :

OFFICE, et al., :

 :

Defendants. :

 :

Civil No. 11-3588 (RMB)

OPINION 

 

APPEARANCES: 

ANTHONY JOHNSON, Plaintiff pro se

#43472-066 

F.D.C. Philadelphia

P.O. Box 420 

Philadelphia, P.A. 19105 

HOWARD LANE GOLDBERG, Counsel for Prosecutor Defendants 

Office of Camden County Counsel

520 Market Street

Courthouse - 14TH Floor 

Camden, N.J. 08102-1375 

BUMB, District Judge

Plaintiff Anthony Johnson (“Plaintiff”) 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 pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the

Court to file the complaint.

At this time, the Court must review the complaint, pursuant to

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

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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 proceed in part at this time.

I. BACKGROUND

Plaintiff brings this civil rights action, pursuant to 42

U.S.C. § 1983, against the Camden County Prosecutors’ Office;

Patrolman McDonald; Prosecutor Grace Clodfelter; Patrolman

McKillop; Patrolman Sgrignuoll; Sergeant Quintavalle; Supervisor

Chris Jones; and Detective Stollstlerner.1 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.

On September 9, 2009, Plaintiff along with Kevin Spence,

Daphine Hill and Michele Salamone stopped at a convenience store in

Sicklerville, New Jersey. Ms. Hill and Ms. Salamone went inside. 

After they returned to the car, all four individuals left the store

parking lot in a car but were pulled over by Gloucester County

police not far down the road. Defendant Jones, one of the

officers, asked Ms. Hill to step out of the car and asked her

questions about the credit card she used at the convenience store. 

1

Though named as defendants, the body of the complaint does not contain

any allegations against Defendants McDonald or Stollstlerner and as such, they

will be dismissed without prejudice. 

2

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She told Defendant Jones that it was her aunt’s card. She was then

placed under arrest. 

The other passengers, including Plaintiff, were asked to get

out of the car and to provide identification. Defendant Jones

asked both Mr. Spence and Plaintiff for consent to search the

vehicle and both said no. Plaintiff told Defendant Jones that he

had done nothing wrong and Defendant Jones told him to “shut up” 

and that they “don’t play interracial relationships over here.” 

All the passengers were placed in handcuffs and taken to the police

station, without being read their Miranda rights. Plaintiff asked

if they were under arrest and he was informed no. Plaintiff was

held at the police station for nineteen hours against his will. 

Ms. Hill and Ms. Salamone admitted committing credit card cash

withdrawals. Ms. Salamone, a Caucasian female, was released. Ms.

Hill, an African-American female, was released on her own

recognizance. Mr. Spence posted bail and was released. Plaintiff

was remanded to the Camden County Correctional Facility. Hill and

Spence plead guilty to the thefts and are still incarcerated. 

Plaintiff’s case is still pending. Salamone was allowed to keep

the stolen proceeds from the thefts. 

Plaintiff alleges a claim pursuant to the Fourth Amendment for

illegal search and seizure based on the officers’ stop of the car

without probable cause and failure to release Plaintiff when his

name came back clear with no warrants. He alleges a Sixth

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Amendment claim based on the fact that Ms. Salamone was released 

and therefore Plaintiff was not able to confront his accuser. 

Further, he was not read his Miranda rights. Finally, Plaintiff

alleges a Fourteenth Amendment claim based on selective enforcement

because the only Caucasian occupant of the car was released, while

the African-American occupants were arrested. 

Plaintiff requests one hundred thousand dollars in

compensatory damages and five million dollars in punitive damages

from each of the Defendants. 

II. DISCUSSION

A. Legal Standard

1. Standards for a Sua Sponte Dismissal

The Prison Litigation Reform Act, 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. § 1915(e)(2)(B). This

action is subject to sua sponte screening for dismissal under 28

U.S.C. § 1915(e)(2)(B) and § 1915A because Plaintiff is proceeding

as an indigent and is a prisoner.

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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)); see also

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

The Supreme Court refined the standard for summary dismissal

of a complaint that fails to state a claim in 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 relief.” FED.R.CIV.P. 8(a)(2). Citing

its 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

“allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(citing Iqbal, 129 S.Ct.

at 1948). The Supreme Court's ruling in Iqbal emphasizes that a

plaintiff must demonstrate that the allegations of his complaint

are plausible. See Iqbal, 129 S.Ct. at 1949-50. See also Twombly,

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505 U.S. at 555, & n. 3; Warren Gen. Hosp. v. Amgen Inc., 643 F.3d

77, 84 (3d Cir. 2011). “A complaint must do more than allege the

plaintiff's entitlement to relief. A complaint has to ‘show’ such

an entitlement with its facts.” Fowler, 578 F.3d at 211 (citing

Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir.

2008).

2. 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 ....

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).

B. Analysis

1. Selective Enforcement/Arrest Without Probable Cause

Plaintiff alleges that there was no probable cause for his

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arrest and that he was arrested because he is African-American,

while a Caucasian woman who was in the car with him was not

arrested.

It is well established in the Third Circuit that an arrest

without probable cause is a Fourth Amendment violation actionable

under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d Cir.

1989) (citing cases); see also, Albright v. Oliver, 510 U.S. 266,

274 (1994) (a section 1983 claim for false arrest may be based upon

an individual's Fourth Amendment right to be free from unreasonable

seizures). To state a Fourth Amendment claim for false arrest, a

plaintiff must allege two elements: (1) that there was an arrest;

and (2) that the arrest was made without probable cause. Dowling

v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). 

“Probable cause ... requires more than mere suspicion;

however, it does not require that the officer have evidence to

prove guilt beyond a reasonable doubt.” Orsatti v. New Jersey

State Police, 71 F.3d 480, 482–83 (3d Cir. 1995). Rather, probable

cause exists when the facts and circumstances are “sufficient to

warrant a prudent man in believing that the defendant had committed

or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103, 111

(1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91 (1964))).

Here, Plaintiff alleges that the arrest was based on an

improper racial motive—that he was arrested because he is AfricanAmerican while a Caucasian woman with him who confessed to the

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crime was not. To establish such a selective-enforcement claim,

a plaintiff must demonstrate (1) that he was treated differently

from other similarly situated individuals, and (2) “that this

selective treatment was based on an ‘unjustifiable standard, such

as race, or religion, or some other arbitrary factor, ... or to

prevent the exercise of a fundamental right.’” Hill v. City of

Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting Holder v. City

of Allentown, 987 F.2d 188, 197 (3d Cir. 1993)).

Finally, “where the police lack probable cause to make an

arrest, the arrestee has a claim under § 1983 for false

imprisonment based on a detention pursuant to that arrest.” Groman

v. Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Palma v. Atlantic

County, 53 F.Supp.2d 743, 755 (D.N.J. 1999) (citing Groman). See

also Anela v. City of Wildwood, 595 F.Supp. 511, 512 (D.N.J. 1984)

(holding a person for any length of time without legal

justification may be a violation of the right to liberty under the

Fourteenth Amendment and thus states a claim of false imprisonment

under § 1983).2

Plaintiff alleges that he was arrested without probable cause

because when the police officer ran his name through the computer,

it came back clear, with no warrants. He further alleges that his

2

 While “[a] false imprisonment claim under 42 U.S.C. § 1983 is based on

the Fourteenth Amendment protection against deprivations of liberty without

due process of law[,]” Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 61

L.Ed.2d 433 (1979), the claim is derivative of a Fourth Amendment violation

for arrest without probable cause. See Groman, 47 F.3d at 636.

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arrest was racially motivated because the only Caucasian person in

the car was not arrested, while he and the other African-American

occupants were arrested. He also alleges that the officers made

racially inappropriate remarks to him during the course of the

arrest and at the station. At this early juncture, Plaintiff has

alleged sufficient facts to allow these claims to proceed past sua

sponte screening as against Defendants McKillop, Sgrignuoll,

Quintavalle and Jones.3

2. Right to Confront Accuser

Plaintiff appears to allege that his Sixth Amendment rights

were violated when the police released Ms. Salamone from custody,

thereby depriving him of his right to confront his accuser. 

The Confrontation Clause of the Sixth Amendment provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him.” U.S. Const.

amend. VI. However, the Supreme Court has stated that “the right

to confrontation is a trial right.” Pennsylvania v. Ritchie, 480

U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (emphasis in

original) (citing California v. Green, 399 U.S. 149 (1970); Barber

v. Page, 390 U.S. 719, 725 (1968)). Courts have repeatedly held

3

 Although the Complaint states a claim sufficient to avoid dismissal at

this time, the Court is mindful that Plaintiff’s criminal case is still

ongoing and that the action may need to be stayed, pursuant to Wallace v.

Kato, 549 U.S. 384 (2007), or dismissed without prejudice, pursuant to Heck v.

Humphrey, 512 U .S. 477 (1994), as the facts become developed.

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that the Sixth Amendment right to confrontation does not extend to

the pre-trial context. U.S. v. Moruzin, 2007 WL 2914903, at * 3

(D.N.J. October 01, 2007) (citing United States v. Matlock, 415

U.S. 164, 174-75 (1974) (noting the inapplicability of the

defendant's confrontation rights to a suppression hearing); cf.

United States v. Salerno, 481 U.S. 739, 751 (1987) (assessing the

statutory confrontation rights of detainees at Bail Reform Act

detention proceedings under the Fifth Amendment's due process

clause without indicating that the Sixth Amendment is implicated);

United States v. Sanchez, 988 F.2d 1384, 1392 (5th Cir. 1993) (“The

right to confront does not extend to non-trial, in camera

settings.”)).

Plaintiff does not allege that his Sixth Amendment right to

confrontation was violated in any criminal trial context. He

alleges only that by allowing Ms. Salamone to leave the police

station, his rights were violated. This does not set forth an

adequate constitutional claim and as such, will be dismissed as to

all defendants. 

3. Miranda Warning

Plaintiff alleges that his Fifth and Sixth Amendment rights

were violated when Defendant Jones failed to read him his Miranda

rights. 

The Supreme Court's opinion in Miranda v. Arizona, 384 U.S.

436 (1966), prohibits the government from using “statements,

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whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against

self-incrimination.” Id. at 444. Miranda requires that, prior to

a custodial interrogation, police must warn a person that he has a

right to remain silent, that anything he says can be used against

him in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney, one will be

provided. Id. at 479. The problem with Plaintiff's § 1983 claims

based on the failure to read him his rights is that “questioning a

plaintiff in custody without providing Miranda warnings is not a

basis for a § 1983 claim as long as the plaintiff's statements are

not used against [him] at trial.” Renda v. King, 347 F.3d 550,

557-58 (3d Cir. 2003); see also Chavez v. Martinez, 538 U.S. 760

(2003). In this case, it is not even clear that Plaintiff made any

statements, and if he did, it certainly does not appear that any

statements were used against him. Therefore, this Court will

dismiss the claim without prejudice against all defendants for

failure to state a claim upon which relief may be granted.

4. Conspiracy Pursuant to 42 U.S.C.§§ 1985 and 1986

Plaintiff alleges a conspiracy between the Gloucester Township

Police Department and the Camden County Prosecutor’s Office

pursuant to 42 U.S.C. §§ 1985 and 1986. He states that “by law

enforcement and prosecutors choosing to allow the Caucasian female

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(Salamone) to go free without any charges and only charging the

black occupants of the vehicle, they deprived the plaintiff of his

right to remain free and threatened his livelihood to be secure in

society, with the same equally protected rights as that of both

male and female Caucasians.”

42 U.S.C. § 1985 states: 

If two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws; or for the purpose of

preventing or hindering the constituted authorities of

any State or Territory from giving or securing to all

persons within such State or Territory the equal

protection of the laws...in any case of conspiracy set

forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is

injured in his person or property, or deprived of having

and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have

an action for the recovery of damages occasioned by such

injury or deprivation, against any one or more of the

conspirators.

42 U.S.C. § 1986 states: 

Every person who, having knowledge that any of the wrongs

conspired to be done, and mentioned in section 1985 of

this title, are about to be committed, and having power

to prevent or aid in preventing the commission of the

same, neglects or refuses so to do, if such wrongful act

be committed, shall be liable to the party injured, or

his legal representatives, for all damages caused by such

wrongful act, which such person by reasonable diligence

could have prevented...

In his complaint, Plaintiff only states in a conclusory manner

that a conspiracy exists between the police department and the

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prosecutor’s office. He provides no facts in support of his

allegation of a conspiracy other than the fact that he was arrested

while Ms. Salamone was not. As such, this claim must be dismissed

against all defendants for failure to state a claim at this time. 

5. Claims Against the Prosecutors’ Office

To the extent Plaintiff attempts to assert a claim for

malicious prosecution against the Camden County Prosecutors’

Office, the Complaint fails to state a claim. A constitutional

claim for malicious prosecution in the Third Circuit requires a

plaintiff to establish five elements: (1) the defendants initiated

a criminal proceeding; (2) the criminal proceeding ended in

plaintiff's favor; (3) the proceeding was initiated without

probable cause; (4) the defendants acted maliciously or for a

purpose other than bringing the plaintiff to justice; and (5) the

plaintiff suffered deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.” 

Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (citing

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). See

also Johnson v. Knorr, 477 F.3d 75, 81–82 (3d Cir. 2007); Helmy v.

City of Jersey City, 178 N.J. 183, 836 A.2d 802, 806 (N.J. 2003)

(citing Lind v. Schmid, 67 N.J. 255, 337 A.2d 365, 368 (N.J.

1975)). “‘Failure to prove any one of these ... elements denies

the plaintiff a cause of action for malicious prosecution.’” 

Wilson v. N.J. State Police, No. 04–1523, 2006 WL 2358349, at *9,

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2006 U.S. Dist. LEXIS 60514 (D.N.J. Aug. 15, 2006) (quoting Wiltz

v. Middlesex County Office of the Prosecutor, No. 05–3915, 2006 WL

1966654, at * 9, 2006 U.S. Dist. LEXIS 46821 (D.N.J. July 12,

2006)).

Here, Plaintiff specifically states in his complaint that his

criminal proceeding is still pending. Therefore, because the

outcome of Plaintiff's state criminal proceedings is not yet

determined, any malicious prosecution claim he asserts against the

prosecutor defendants must be dismissed without prejudice at this

time.4 

6. Request for Pro Bono Counsel

Plaintiff filed an application for appointment of pro bono

counsel. (Docket Entry No. 3.) He seeks counsel because his

“imprisonment will greatley [sic] affect his ability to litigate

[and] the issues involved in this case are complex and will require

significant research and investigation.” 

Appointment of counsel under 28 U.S.C. § 1915(e)(1) may be

made at any point in the litigation and may be made by the Court

sua sponte. See Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993),

cert. denied, 510 U.S. 1196 (1994). The plaintiff has no right to

counsel in a civil case. See id. at 153-54; Parham v. Johnson, 126

F.3d 454, 456-57 (3d Cir. 1997).

4

 Since all claims against the Camden County Prosecutors Office and its

attorneys are being dismissed, the motion to dismiss filed by these defendants

(Docket Entry No. 2) is hereby dismissed as moot.

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In evaluating a motion to appoint counsel, the court must

first examine the merits of Plaintiff’s claim to determine if it

has “some arguable merit in fact and law.” See Tunnell v. Gardell,

2003 WL 1463394 at * 1 (D. Del. Mar. 14, 2003)(Slip Copy)(citing

Parham, 126 F.3d at 457)(other citations omitted). If the court is

satisfied that the claim is “factually and legally meritorious,”

then the following factors must be examined: (1) a plaintiff’s

ability to present his or her own case; (2) the complexity of the

legal issues; (3) the degree to which factual investigation will be

necessary and the ability of a plaintiff to pursue such

investigation; (4) the amount a case is likely to turn on

credibility determinations; (5) whether the case will require the

testimony of expert witnesses; and (6) whether a plaintiff can

attain and afford counsel on his or her own behalf. See id.

(citing Parham, 126 F.3d at 457-58; Tabron, 6 F.3d at 155-56, 157

n.5). However, a court should also consider other factors, such as

the lack of funding to pay appointed counsel, the limited supply of

competent lawyers willing to do pro bono work, and the value of

lawyers’ time. See Tabron, 6 F.3d at 157-58.

In the instant case, defendants have not yet been served with

the complaint. Further, whether or not the Plaintiff’s claims have

merit, the factual and legal issues “have not been tested or

developed by the general course of litigation, making [a number of

factors] of Parham’s test particularly difficult to evaluate.” 

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Chatterjee v. Philadelphia Federation of Teachers, 2000 WL 1022979

at *1 (E.D. Pa. July 18, 2000)(stating that unlike Parham, which

concerned a directed verdict ruling, and Tabron, which involved

summary judgment adjudication, plaintiff’s claims asserted in

complaint and motions “have barely been articulated” and have

distinctive procedural posture).

With regard to the Tabron/Parham factors, Plaintiff has not

demonstrated, at this stage of proceedings, the complexity of legal

issues, the degree to which factual investigation will be

necessary, or that he will be in need of expert witnesses. Without

the assistance of counsel, Plaintiff has already presented a

coherent complaint asserting various points of law, several letters

and the instant motion for appointment of counsel to this Court. 

The Court recognizes that issues may arise in the course of

this litigation which may raise a question as to Plaintiff’s need

for counsel. In that case, the Court will consider a renewed

motion for appointment of counsel. At this point in the

litigation, however, the Plaintiff’s motion for appointment of

counsel will be denied, without prejudice. 

III. CONCLUSION

For the reasons stated above, Plaintiff’s claims for false

arrest and selective enforcement against Defendants McKillop,

Sgrignuoll, Quintavalle and Jones will be allowed to proceed at

this time. All other claims will be dismissed without prejudice. 

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An appropriate order follows. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: January 31, 2012

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