NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

MARK PICOZZI, :

 : Civil Action No.

Plaintiff, : 11-3991 (JBS)

 :

v. : O P I N I O N 

 :

WPVI-TV CHANNEL 6 :

ACTION NEWS, et al., :

 :

Defendants. :

_______________________________:

 

Simandle, District Judge:

Plaintiff, an inmate confined at the Metro West Detention

Center, Miami, Florida, seeks to bring this action in forma

pauperis. Based on his affidavit of indigence and the absence 1

of three qualifying dismissals within 28 U.S.C. § 1915(g), the

Court will grant Plaintiff's application to proceed in forma

pauperis, pursuant to 28 U.S.C. § 1915(a), and will order the

Clerk to file the Complaint.

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

 Plaintiff’s initial submission contained a deficient in 1

forma pauperis application. See Docket Entry No. 1. This Court,

therefore, direct Plaintiff to cure the deficiency. See Docket

Entry No. 2. In response, Plaintiff submitted a complete in

forma pauperis application. See Docket Entry No. 3. 

Case 1:11-cv-03991-JBS-AMD Document 4 Filed 02/01/12 Page 1 of 26 PageID: 54
granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

A. INITIAL STAGES OF THESE PROCEEDINGS

As noted supra, see this Opinion, note 1, this Court denied

Plaintiff in forma pauperis status without prejudice. See Docket

Entry No. 2. In its order denying Plaintiff in forma pauperis

status, this Court also noted: 

Plaintiff’s Complaint indicates that he is not in

imminent danger of serious physical injury; rather, his

Complaint asserts that a certain news agency committed

“slander/libel” by wrongly referring to Plaintiff as

“rapist.” In addition, without any factual

clarification, the Complaint maintains that Defendants

violated Plaintiff’s “Eighth Amendment rights.” 

Moreover, the Complaint is silent as to the time when

the alleged defamation took place, although it does

clarify that the alleged public dissemination took

place in the Commonwealth of Pennsylvania.

Id. at 2-3 (citations to Docket Entry No. 1 omitted).

The Court also informed Plaintiff that

[a] civil action based on diversity jurisdiction may . 

. . be brought only in (1) a judicial district where

any defendant resides, if all defendants reside in the

same State, (2) a judicial district in which a

substantial part of the events or omissions giving rise

to the claim occurred . . . , or (3) a judicial

district in which any defendant may be found, if there

is no district in which the action may otherwise be

brought.

Id. at 3, n. 1 (quoting 28 U.S.C. § 1391(b)) (emphasis in

original, original brackets removed).

2

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Upon providing Plaintiff with these clarifications and,

hence, allowing Plaintiff an opportunity to reflect on his

claims, the Court directed as follows:

[In the event Plaintiff elects to prepay his filing fee

or to submit a complete in forma pauperis application,}

Plaintiff shall file, together with his filing fee or

with his proper in forma pauperis application, a

written statement operating as Plaintiff’s supplement

to his Complaint. Such written statement shall

clarify:

a. The time when the alleged public dissemination of

wrongful information took place;

b. The factual basis in support of Plaintiff’s

position that Defendants violated Plaintiff’s

Eighth Amendment rights; and

c. The basis for Plaintiff’s position that his

challenges shall be heard in this District . . . .

Id. at 5. In response, Plaintiff submitted a supplement to his

Complaint, as discussed infra.

B. ASSERTIONS STATED IN THE ORIGINAL COMPLAINT

In his Complaint (a fifteen-page compilation ), see Docket 2

Entry No. 1, Plaintiff named, as Defendants in this action, the

following entity and individuals: (a) WPVI-TV Channel 6 Action

News (“News Channel”); (b) Richard Del Campo, Chief (“Chief”);

and () John Does Cherry Hill Police Department (“Does”). See

Docket Entry No. 1, at 3.

 The bulk of Plaintiff’s voluminous original Complaint 2

was consumed by Plaintiff’s self-serving factless conclusions as

to Defendants’ alleged state of mind and Plaintiff’s lengthy

teaching to this Court how to adjudicate his “slander / libel”

claim. 

3

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With regard to the News Channel, Plaintiff’s Complaint

asserted that the News Channel “committed slander / libel and

defamation of character against [Plaintiff] by broadcasting and

reporting both live and on the news and on the[ir] website that

[Plaintiff] served time for ‘rape’ and was a ‘convicted rapist.’”

Docket Entry No. 1, at 3. The Complaint did not plead how the

Chief (or any of the “Does”), personally, was implicated in this

matter. Rather, Plaintiff: (a) asserted that these persons must

be deemed liable because the News Channel made its “statements .

. . from misinformation provided to the [News Channel] by the

Cherry Hill Police Department,” id. at 4; and (b) deduced from

the foregoing that the Chief, being the supervisor of the Cherry

Hill Police Department, and Does, being employees of the same

Cherry Hill Police Department, must be liable to Plaintiff. See

id. Stating the injury Plaintiff had suffered as a result of the

alleged violations, Plaintiff asserted that, “[w]hen the news

story broke, that same night Plaintiff was attacked with a

baseball bat and gun [by unspecified person] at his exgirlfriend[’]s home[,] causing him to flee New Jersey. His life

was threatened to the point he fe[ar]ed for his own safety. He

was chased and called rapist.” Id. at 9. 

Plaintiff’s Complaint was dated July 5, 2011. See id. at 1. 

Therefore, it is self-evident that Plaintiff could not have

handed it to his prison officials for mailing to this Court prior

4

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to that date. Although it is plausible that Plaintiff handed the

Complaint on a later date, this Court presumes, without making a

factual finding, that the Complaint was handed to Plaintiff’s

prison officials on July 5, 2011.

C. ASSERTIONS STATED IN THE SUPPLEMENT TO THE COMPLAINT

In his supplement (“Supplement”) to the Complaint, Plaintiff

stated that “the alleged public dissemination [by the News

Channel] took place [on] August 5, 2009 . . . .” Docket Entry

No. 3, at 5. 

Altering Plaintiff’s original allegations as to the injury

Plaintiff suffered, the Supplement asserted that, “[w]hen the

story broke, I was immediately contacted by my employer[,]

Mul[l]ica Hill Shoprite[,] and told I was not to come back to

work because of the news story.” Id. at 5. 3

 By the time of the news report, Plaintiff had an 3

extensive criminal record in New Jersey (and later developed

additional criminal record in other states). Plaintiff’s thenexisting criminal record included aggravated assault and armed

burglary (stemming from the offenses adjudicated in 1987),

kidnapping and robbery conviction (stemming from the offenses

adjudicated in 1991), and parole violation adjudicated in 1990. 

See <<https://

www6.state.nj.us/DOC_Inmate/details?x=1048539&n=0>>. Plaintiff’s

Supplement did not clarify the basis for Plaintiff’s position

that his alleged firing was a result of the store management’s

concern with the News Channel’s reference to the “rape” rather

than a concern prompted by the store’s discovery of Plaintiff’s

prior criminal record and new criminal offenses he was charged

with immediately prior to the News Channel’s broadcast. The

Court notes, in passing, its grave concern with the fact that all

Plaintiff’s pleadings in this action asserted that he was

sentenced only once, and solely for the offense of kidnapping,

concealing the rest of his record.

5

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Upon making this statement, the Supplement alleges that

Plaintiff had “a career [at the Mullica Hill] Shoprite[,] where

[he] was making excellent money,” id. at 6; the Supplement

alleges that it “was cruel and unusual punishment under the

Eighth Amendment” for Defendants to disseminate information about

Plaintiff being a “rapist” since Plaintiff regarded his loss of

employment as “cruel and unusual punishment.” See id. The

Supplement also asserts that Plaintiff’s “[F]ourteenth Amendment

right was also violated, because this [firing] denied [him] life,

liberty, property without due process.” Id. Moreover, the

Supplement also maintains that “[t]he equal protection of the law

[was] violated because false and misleading information was

provided to the entire public and [Plaintiff’s] reputation was

destroyed as was [his] career.” 

With that, Plaintiff’s Supplement states that the proper

venue for this action is in this District because the Cherry Hill

Police Department is located in the State of New Jersey. See id.

at 7. Plaintiff avers that his domicile remained in New Jersey

regardless of Plaintiff’s lengthy period of recent residence in

Florida because he was always intending and allegedly still

intends to return to New Jersey.4

 It appears that, as of now, Plaintiff is serving a prison 4

term in Florida. This Court’s determination, however, is

complicated by Plaintiff’s assertion that he is situated in

Florida in order to sue Miami Beach Police Department (a Florida

entity), as well as Egg Harbor Police Department (a New Jersey

6

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D. NEWS ARTICLES ABOUT PLAINTIFF

The Court located the following four news articles about

Plaintiff in the public domain:

(1) Posted: Wednesday, August 5, 2009.

Police say robber fakes being officer.

The Egg Harbor Township and Cherry Hill police

departments are looking for a man who they say

impersonates a police officer, then robs women. Cherry

Hill Detective Sgt. Joseph Vitarelli said Tuesday that

Mark Picozzi, 43, of Cherry Hill, has tricked women in

the [Egg Harbor] township and at least one in Cherry

Hill by telling them he is a policeman doing an

investigation, then extorting money and “whatever else

he can get” from his victims. Vitarelli said Picozzi

was arrested May 13 on charges of criminal restraint,

impersonating a police officer, attempted criminal

sexual contact and theft. Picozzi was released from

the Camden County jail May 14 on bail, according to the

Camden County Warden's Office. Vitarelli described

Picozzi as about 5 feet 6 inches to 5 feet 7 inches

tall, weighing 160 to 170 pounds. Egg Harbor Township

police said in a statement that Picozzi spends a lot of

time gambling in Atlantic City and might also be in the

Marlton, Burlington County, and Philadelphia areas. 

Picozzi served time between February 1987 and January

2008 on various charges of kidnapping, burglary,

aggravated assault, robbery and parole violation,

according to the state Department of Corrections' Web

site. Anyone with information should contact the Egg

Harbor Township Detective Division . . . .

<<http://www.pressofatlanticcity.com/news/press/cape_may/article_

694825cd-7b52-5fd8-a990-9deaa47b81a3.html>>.

(2) Alleged fake cop has criminal past.

Wednesday, August 05, 2009.

entity), Cherry Hill Police Department (another New Jersey

entity), and all these Plaintiff’s legal actions are, allegedly,

a part of certain investigation by the F.B.I. and the Department

of Justice, and these federal agencies, somehow, “all fear for

[Plaintiff’s] well[-]being.” Docket Entry No. 3, at 7-8.

7

Case 1:11-cv-03991-JBS-AMD Document 4 Filed 02/01/12 Page 7 of 26 PageID: 60
A man who remains at large for impersonating a police

officer has a criminal past, Action News has learned. 

Cherry Hill police say Mark Picozzi was arrested for

rape and other offenses nearly 20 years ago. After his

arrest he was sentenced to prison and recently got out. 

Since then, he was arrested for impersonating a police

officer in Cherry Hill, along with two counts of

criminal sexual conduct and two counts of criminal

restraint. He posted bail, police say, and fled to Egg

Harbor Township. There, police say Picozzi again posed

as a police officer and his name and picture were

released to the media this week. Picozzi is accused of

telling his victims he has search teams waiting to comb

through their home. During the bogus investigation he

allegedly steals money and identification from his

female victims. So far, there have been no reports of

sexual assaults in Egg Harbor Township. Anyone having

any information regarding the whereabouts of Mark

Picozzi should contact the Egg Harbor Township Police

Department, Detective Division . . . . 

Copyright ©2011 WPVI-TV/DT. All Rights Reserved.

<<http://abclocal.go.com/wpvi/story?section=news/local&id=69500

83>> (emphasis supplied).

(3) Man Accused Of Inappropriately Touching Victim.

POSTED: Wednesday, September 30, 2009.

MIAMI BEACH, Fla. -- Police used a cell phone number to

track down a man suspected of posing as a police officer so

he could rob and inappropriately touch a woman. According

to Miami Beach police, on Saturday, Mark Picozzi, 43, met a

woman to view an apartment for rent. Inside the apartment,

police said, Picozzi told the woman he was a police officer

doing a drugs and guns investigation. Police said Picozzi

told the woman to sit down and not to scream, then went

through her purse, stealing her ID, a ring and cash. Police

said Picozzi also touched the woman inappropriately. 

Investigators said they used the cell phone number from

which Picozzi had called the woman in order to track him

down and arrest him. Miami Beach police said Picozzi is

wanted in New Jersey in connection with two similar crimes. 

Picozzi faces charges of [armed] robbery, kidnapping and

falsely impersonating an officer.

Copyright 2009 by Post-Newsweek Stations.

<<http://www.local10.com/news/21162503/detail.html>>.

8

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(4) Man accused of impersonating cop in Egg Harbor Township

caught in Florida.

Posted: Tuesday, October 6, 2009.

Mark Picozzi, a New Jersey man who was wanted by Egg

Harbor Township and Cherry Hill police for robbing

women while impersonating a police officer, was

arrested last week in Miami Beach, Fla., according to

police. Picozzi, 43, of Cherry Hill, made an

appointment with a young woman Sept. 26 to view a

rental apartment at 320 W. 25th Street, Miami Beach

Police Officer Deborah Doty said Monday. When Picozzi

arrived at 9 p.m., he allegedly told the Miami Beach

woman that he was a cop, covered her mouth, removed

$600 from her pocketbook and fondled her breasts, Doty

said. Picozzi then allegedly took other items from the

woman, including her identification and a ring, locked

her inside a closet and fled, Doty said. The victim,

whom police declined to identify, provided a detailed

description of Picozzi and he was arrested Sept. 28 at

a Best Western Hotel in Coral Gables, Doty said.

Picozzi was charged with grand theft in the third

degree/vehicle, strong arm robbery, kidnapping and

falsely impersonating a police officer, according to

the Miami-Dade County inmate profile Web site. Picozzi

allegedly tricked and robbed women in Egg Harbor

Township and Cherry Hill earlier this year, according

to the township and Cherry Hill police. Picozzi was

arrested May 13 by the Cherry Hill police for criminal

restraint, impersonating a police officer, attempted

criminal sexual contact and theft charges, but he was

released from Camden County jail on bail the next day.

The Egg Harbor Township police sent out a statement and

photo in August seeking public help in catching

Picozzi. On late Monday afternoon, Picozzi was still

incarcerated at Metro West Detention Facility in Miami,

where he is held with no bond [on] kidnapping charge.

His court date is Oct. 19. Picozzi previously spent

jail time in New Jersey between February 1987 and

January 2008 on various charges of kidnapping,

burglary, aggravated assault, robbery and parole

violation, according to the state Department of

Corrections' Web site.

<<http://www.pressofatlanticcity.com/news/press/atlantic/art

icle_9f2f73b7-55b8-54d1-8714-0971bd6e0a39.html>>.

The Court, thus, presumes, that Plaintiff’s claims are based 

9

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on the second above-quoted article stating that, twenty years 

ago, Plaintiff was arrested on, inter alia, allegations of rape.

II. 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 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,

10

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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 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

11

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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.

III. DISCUSSION

A. PLAINTIFF’S CHALLENGES VIEWED AS SECTION 1983 CLAIMS

1. General Principle

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).

2. Allegations Against the News Channel

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 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

13

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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.

The United States Supreme Court has articulated several

instances where a private party's actions may be fairly

attributed to state action, explaining that such attribution

accrues if: (1) a private defendant's wrongful activity results

from the State's coercive power; (2) the State provides

significant encouragement to a private defendant's wrongful

activity; (3) a private defendant engages in a wrongful conduct

while acting jointly with the State or its agents; (4) a

nominally private defendant is effectively controlled by the

State during the defendant's wrongful activity; (5) a private

defendant has been delegated a public function by the State and

used that delegation to engage in the wrongful activity; or (6)

the government manages or controls a private defendant in

connection with the defendant's wrongful activity. See Brentwood

Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296

(2001). 

14

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Under the above-detailed standards, and as a general matter,

news media cannot be deemed a “state actor” for the purposes of

Section 1983 action. See Glendora v. Cablevision Systems Corp.,

893 F. Supp. 264, 269 (S.D.N.Y. 1995) (cable television operator

was not a state actor because “ownership and operation of an

entertainment facility are not powers traditionally exclusively

reserved to the State, nor are they functions of sovereignty” and

its functions do not become government functions because it is

“subject to state and federal regulation, or operates pursuant to

a franchise”); Thomas v. News World Commc'ns, 681 F. Supp. 55, 66

(D.D.C.1988) (Section 1983 claim fails where complaint alleges no

acts taken by newspaper “under color of” any state or D.C. law).

However, this general principle is subject to a narrow

exception. Since the Supreme Court explained that the state

action doctrine requires that the constitutional deprivation “‘be

caused by the exercise of some right or privilege created by the

State or by a rule of conduct imposed by the state or by a person

for whom the State is responsible’” and that “‘the party charged

with the deprivation must be a person who may fairly be said to

be a state actor,’” Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922, 937 (1982), the Supreme Court correspondingly outlined four

tests, derived from the panoply of above-listed considerations,

allowing to determine whether private actors, such as the media

defendants, could be considered state actors: “(1) the public

15

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function test, (2) the nexus test, (3) the symbiotic relationship

test, and (4) the joint action test.” Id. at 1202-03. 

Here, Plaintiff seemingly relies on the “joint action” test

by contending that the News Channel acted in concert with

officials of the Cherry Hill Police Department, who were state

actors. However, when such allegations are posed, the courts

“examine ‘whether state officials and private parties have acted

in concert in effecting a particular deprivation of

constitutional rights.’” Anderson v. Suiters, 499 F.3d 1228, 

(10th Cir. 2007) (quoting Lugar, 457 U.S. at 1205). It is not

enough for a plaintiff to allege in his/her complaint such

concerted action by merely claiming that the media defendants and

state actors must have participated or agreed, somehow, to air

allegedly wrongful information. Rather, the plaintiff has to

assert facts showing that: (a) the media defendants knew about

the information being wrongful; and (b) there was a shared

purposes between the media and the state actors. A plaintiff’s

self-serving request to the court to infer such knowledge or such

shared purpose is insufficient. See id. at 1234. 

Here, Plaintiff pleads no facts indicating “joint action,”

within the meaning of the color of law requirement, by the News

Channel and police; all he pleads is his self-serving request the

Court to make such inferences, even though the Court is provided

with no facts allowing such deducement. Therefore, Plaintiff’s §

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1983 allegations against the News Channel are subject to

dismissal for failure to meet the color of law requirement, that

is, the News Channel is not a “person” acting under color of

state law.

3. Allegations Against the Chief and Does

Supervising officials cannot be held liable for actions of

their subordinates unless the litigant asserts facts showing

these supervisors’ personal involvement in the alleged wrongs. 

See Iqbal, 129 S. Ct. 1937; Monell v. Department of Social

Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

(1976); Durmer v. O'Carroll, 991 F.2d 64, 69 n.14 (3d Cir. 1993). 

Thus, claims against the supervisors are subject to dismissal to

the degree they are based solely on the respondeat superior

theory. See Natale v. Camden County Corr. Facility, 318 F.3d

575, 584 (3d Cir. 2003) (because respondeat superior or vicarious

liability cannot be a basis for liability under 42 U.S.C. § 1983,

a corporation – even if it is operation under contract with the

state – cannot be held liable for the acts of its employees and

agents under those theories).

Moreover, even if the litigant's claims are not based on the

doctrine of respondeat superior, the litigant still must assert

specific facts implicating defendants: personal involvement by a

defendant is an indispensable element of a valid legal claim. 

See Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir.

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1995); Sample, 885 F.2d at 1100; Rode, 845 F.2d at 1207; accord

Mimms v. U.N.I.C.O.R., 2010 U.S. App. LEXIS 14321, at *4 (3d Cir.

July 13, 2010) (“The District Court properly dismissed the

claims against [those defendants with regard to whom the

plaintiff] simply failed to state any allegation,” citing Iqbal,

129 S. Ct. at 1949).

Here, Plaintiff’s Complaint and Supplement are void of any

facts indicating personal involvement of either the Chief or

Does; Plaintiff’s pleadings unambiguously indicate that

Plaintiff: (a) named the Chief as a Defendant merely on the basis

of the Chief’s supervisory position; and (b) included Does as

Defendants merely on the basis of Does’ employ at the Cherry Hill

Police Department. Since such allegations are facially

insufficient, Plaintiff’s claims against the Chief and Does are

subject to dismissal.

4. Overall Deficiency of Plaintiff’s Claims

Even if the Court were to ignore the above-detailed

shortcomings of Plaintiff’s challenges (i.e., his failure to meet

the color of law requirement, his reliance on the respondeat

superior theory and his failure to assert facts showing personal

involvement), Plaintiff’s chain of constitutional claims is non

sequitur. 

Plaintiff’s original constitutional claim stated in the

Complaint and elaborated upon in the Supplement asserts that

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Defendants’ action must be qualified as “cruel and unusual

punishment” in violation of the Eight Amendment because

Plaintiff, allegedly, lost his Shopright employ as a result of

dissemination of the article replicated in section (I)(D)(2) of

this Opinion. However, the Eighth Amendment protections have

nothing to do with one’s loss of employ, and Plaintiff’s selfserving qualification of Defendants’ actions as “cruel and

unusual punishment” cannot stitch the Eighth Amendment to

Plaintiff’s claims. 

5

Plaintiff’s additional “constitutional” claims (asserted in

his Supplement) make even less sense. 

Plaintiff’s reference to the Fourteenth Amendment maintains

that Defendants deprived him of “life, liberty [and] property”

without due process of law. However, it is self-evident that

neither Defendants nor any other person or entity deprived

Plaintiff of “life.” Moreover, Defendants’ actions had nothing

to do with Plaintiff’s “liberty”: indeed, Plaintiff’s current

incarceration in Florida (as his past incarcerations in New

 The protections ensuing from the Eighth Amendment guard 5

against undue abuses of those convicted individuals who are

placed in physical custody of state officials. For instance, a

convicted inmate may sufficiently allege an Eighth Amendment

violation if (s)he states facts showing that (s)he was denied a

basic human need or that his/her conditions of confinement posed

a substantial risk of serious harm, or that the state officials

were deliberately indifferent to his/her health or safety. See,

e.g., Johnson v. Wenerowicz, 2011 U.S. App. LEXIS 15736 (3d Cir.

July 29, 2011).

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Jersey) was a result of Plaintiff’s commission of criminal

offenses in Florida (and in New Jersy), where determinations as

to Plaintiff’s “liberty” were made by entities other than

Defendants (i.e., by Florida and New Jersey state courts), and

the Complaint nowhere alleges that the state tribunals failed to

provide Plaintiff with all the process due by means of Florida

and New Jersey criminal proceedings. Finally, even if

Plaintiff’s allegations asserting deprivation of “property” could

be construed as referring to Plaintiff’s loss of his Shoprite 

employ, Defendants did not take away that “property”: the

managers of the Shoprite revoked Plaintiff’s employ, and they

could do so without any violation of due process, since Shoprite

is not a state actor. Further, Plaintiff never alleges that any

state actor ordered Shoprite to terminate Plaintiff's employment. 

Correspondingly, as it is the case with Plaintiff’s Eighth

Amendment challenges, Plaintiff’s tossing of the phrase

“Fourteenth Amendment” cannot stitch Plaintiff’s allegations to

the protections ensuing from the language of the Due Process

Clause. 

Finally, Plaintiff’s claim that Defendants violated his

equal protection rights “because false and misleading information

was provided to the entire public and [Plaintiff’s] reputation

was destroyed” has nothing in common with the scope of the Equal

Protection Clause, be this Clause read in the context of “class

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of one” challenges or in terms of membership in a protected

class. Simply put, if Plaintiff’s lengthy Complaint and his

even-lengthier Supplement could be read as indicating anything,

they indicate a stark absence of any constitutional challenges. 

Therefore, all Plaintiff’s allegation styled to mimic

constitutional claims will be dismissed as frivolous. 

B. PLAINTIFF’S CHALLENGES READ AS A DIVERSITY CLAIM

1. General Principle

The foregoing analysis leaves this Court only with

Plaintiff’s “slander / libel” claims. 

A district court has jurisdiction “over civil actions

arising under ‘the Constitution, laws, or treaties of the United

States’ (federal question jurisdiction) and civil actions between

citizens of different states with the amount in controversy

exceeding the sum or value of $75,000 (diversity jurisdiction).”

Rockefeller v. Comcast Corp., 2011 U.S. App. LEXIS 7942, at *1

(3d Cir. Apr. 18, 2011) (quoting 28 U.S.C. §§ 1331, 1332(a)).

Since, here, Plaintiff’s challenges do not raise any federal

question, Plaintiff’s “slander / libel” claims may be brought

only if Plaintiff establishes diversity jurisdiction.6

2. Jurisdictional and Venue-Related Considerations

 For the sake of the argument, the Court presumes, without 6

making a factual finding to that effect, that Plaintiff’s “amount

in controversy” meets the monetary requirement of the statute.

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While the venue aspects do not have dispositive effect on

the outcome of this Court’s analysis (because Plaintiff’s claims

are being dismissed rather than transferred on venue grounds), it

is worth mentioning that – since the Complaint and Supplement

assert, in no ambiguous terms, that Plaintiff’s alleged injuries

resulted from a public dissemination of information about

Plaintiff, and the entity that conducted the dissemination at

issue was not a New Jersey police department but the News

Channel, a Pennsylvanian juridical entity (registered and having

its principal office in Pennsylvania, and transmitting its news

reports from Pennsylvania) – this action should have been brought

in the federal court having seat in Pennsylvania under §

1391(b)(2), that is, had the diversity requirements were met.

To establish diversity jurisdiction, a party must show that

each plaintiff is completely diverse from each defendant. The

citizenship of Plaintiff and Defendants determines whether the

parties are diverse, and – if Plaintiff is a citizen of a state

where any Defendant is also a citizen – then the parties are not

diverse. See Midlantic Nat'l Bank v. Hansen, 48 F.3d 693, 696

(3d Cir. 1995); see also Field v. Volkswagenwerk AG, 626 F.2d

293, 305 (3d Cir. 1980) (diversity jurisdiction “is to be tested

by the status of the parties at the commencement of the suit”).

Here, the clarifications provided by Plaintiff in his

Supplement indicate Plaintiff’s adamant position that he is

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domiciled in New Jersey, as are the Chief and Does. Therefore,

Plaintiff’s “slander / libel” challenges are not only improperly

venued but also subject to dismissal for want of diversity

jurisdiction. Diversity is absent because Plaintiff has alleged

that he and the Chief and the “Does” are all citizens of New

Jersey.

3. Plaintiff’s Claims Are Time-Barred

Moreover, even if this Court were to: (a) hypothesize that

Plaintiff erroneously insisted that his domicile is in New Jersey

(which, in turn, would allow the Court to presume that Plaintiff

might be domiciled in Florida); and (b) ignore the impropriety of

Plaintiff’s venue choice, Plaintiff’s “slander/libel” claims are

facially subject to dismissal for failure to meet the applicable

statute of limitations.

N.J. Stat. Ann. 2A:14-3 mandates a one year limitation

period for defamation claims. The statute states “[e]very action

at law for libel or slander shall be commenced within 1 year next

after the publication of the alleged libel or slander.” N.J.

Stat. Ann. 2A:14-3. New Jersey courts have held that the

one-year statute of limitation found in N.J. Stat. Ann. 2A:14-3

applies to claims arising out the publication of false or private

facts no matter how those claims are presented in the pleadings. 

See Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 122

(N.J. Super. Ct. App. Div. 2009). The state courts have held

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that false light and invasion of privacy claims premised on the

same conduct as a defamation claim are logically equivalent to

defamation claims and are thus subject to the same one-year

statute of limitation. See id. at 122-23 (“Neither law nor logic

justifies why Count Two of plaintiff's complaint labeled

'Defamation' should be subject to a one-year statute of

limitations while his same claims re-labeled 'False

Light/Invasion of Privacy' in Count Three should be governed by a

longer limitations period”). Since Plaintiff’s “defamation,”

“slander” and “libel” claims had arisen out of the August 5,

2009, publication of the circumstances of one of Plaintiff’s

prior arrests and were raised in the Complaint executed nearly

two years after, i.e., on July 5, 2011, these claims are facially

subject to dismissal as untimely.7

C. LEAVE TO AMEND IS NOT WARRANTED

 The same outcome would follow had Plaintiff filed his 7

Complaint in a federal court having seat in the Commonwealth of

Pennsylvania: under Pennsylvania law, the statute of limitations

for the tort of defamation is one year from the occurrence of the

allegedly tortious act. See 42 Pa. Cons. Stat. Ann. § 5523(1). 

Moreover, considerations of equitable tolling cannot apply to

Plaintiff in light of his assertions that, during the last couple

years, he has been either preparing to maintain or already

maintaining legal actions against Florida and New Jersey police

departments (and, moreover, retained counsel to represent him in

these actions), that is, in addition to his alleged legal actions

taken “together” with the FBI and Department of Justice in the

recent past. The foregoing indicates that Plaintiff could have

filed his “libel / slander” challenged timely, that is, had he

wished to do so.

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Ordinarily, the plaintiff may be granted “leave [to amend,]

. . . when justice so requires.” See Foman v. Davis, 371 U.S.

178, 182 (1962); accord Lorenz v. CSX Corp., 1 F.3d 1406, 1414

(3d Cir. 1993). Indeed, “[t]he Federal Rules reject the approach

that pleading is a game of skill in which one misstep . . . may

be decisive to the outcome and accept the principle that the

purpose of pleading is to facilitate a proper decision on the

merits.” Foman, 371 U.S. at 182-83. However, “[a]llowing leave

to amend where there is a stark absence of any suggestion by the

plaintiffs [may] cure the defects in the pleadings . . . would

frustrate Congress's objective in enacting this statute of

'provid[ing] a filter at the earliest stage (the pleading stage)

to screen out lawsuits that have no factual basis.” Cal. Pub.

Emples'. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir.

2004) (internal quotation marks and citation omitted); accord In

re Career Educ. Corp. Sec. Litig., 2007 U.S. Dist. LEXIS 23635,

at *36 (N.D. Ill. Mar. 29, 2007) (where “plaintiffs have had

ample opportunities to research and plead their claims,” but

failed to compose a sufficient pleading, the complaint must be

dismissed with prejudice).

Here, Plaintiff submitted his lengthy Complaint and even

lengthier Supplement. Having carefully combed through each and

every Plaintiff’s allegation stated in these pleadings, the Court

located no statement indicating that Plaintiff, if granted leave

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to amend, might be able to articulate a viable claim. Rather,

Plaintiff’s allegations verify that Plaintiff’s circumstances

cannot be translated into a cognizable challenge, be it of

constitutional nature or a state law tort challenge. 

Since issuance of leave to amend to Plaintiff would be

futile, no leave to amend will be granted.

IV. CONCLUSION

For the foregoing reasons, the Court will direct the Clerk

to reopen this matter, will grant Plaintiff's application to file

the Complaint without prepayment of the filing fee and will

dismiss the Complaint. Such dismissal will be with prejudice.

An appropriate Order accompanies this Opinion.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE,

Chief, U.S. District Judge

Dated: February 1, 2012

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