*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

LEONARD NORMAN FEDEE, :

 :

Plaintiff, :

 :

v. :

 :

BONNIE GELLAR GORMAN, et al.,:

:

Defendants. :

 :

Civil No. 11-3547 (RBK)

OPINION 

 

Plaintiff Leonard Norman Fedee (“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

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 at this time.1

The Court received Plaintiff's Complaint on June 21, 2011. Because

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Plaintiff's application to proceed in forma pauperis was deficient, this Court

denied the application and administratively terminated the case on June 23,

2011. Plaintiff thereafter submitted his complete application to proceed in

forma pauperis with his prison account statement. This Court will reopen the

file to consider the renewed application to proceed in forma pauperis and to

screen the Complaint.

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I. BACKGROUND

Plaintiff brings this civil rights action, pursuant to 42

U.S.C. § 1983, against Defendants Kevin Walker, Bonnie Gellar

Gorman and Michael V. Luciano. 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 or about February 15, 2010, Plaintiff was arrested for two

counts of theft by deception. On or about May 12, 2010, Plaintiff

was arraigned and Ms. Gorman was appointed as his public defender. 

Plaintiff met with Ms. Gorman for the second time in July 2010. 

Plaintiff’s trial was set down for February 2, 2011. Plaintiff did

not see or speak to Defendant Gorman until November 15, 2010, when

he received a letter from her informing him that he was being

charged with two new counts of theft by deception and one count of

unregistered solicitor. 

On December 20, 2010, Ms. Gorman sent Plaintiff a letter

informing him that there was a plea offer of four years from the

prosecutor. Plaintiff turned down the offer. Plaintiff alleges

that in the time leading up to his February trial, Defendant Gorman

did not discuss the plan for defending him or “listen to [his] side

of the story.” Plaintiff alleges that he asked Defendant Gorman to

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enter a piece of evidence that would prove his innocence but she

refused. 

The trial began on February 2, 2011. On February 10, 2011,

Defendant Gorman went to Plaintiff and informed him that she

changed her mind and would be seeking to enter the piece of

evidence Plaintiff provided. She conferred with the prosecutor,

Defendant Luciano, and he said he would oppose the introduction of

the evidence. Defendant Gorman went into the courtroom, then

returned ten minutes later and told Plaintiff that Defendant

Luciano wanted to speak with him while she was present. Defendant

Luciano requested that Plaintiff take the plea deal being offered

because he would not consent to the evidence being entered. 

Plaintiff refused. The judge denied Ms. Gorman’s request to enter

the evidence. As a result, Plaintiff alleges that he had no other

option but to accept the plea deal. 

Plaintiff returned to court for sentencing on March 26, 2011. 

On May 5, 2011, Plaintiff was going through documents of discovery

and he came across a warrant issued on February 20, 2009 for

failure to appear for arraignment conference for two counts of

theft by illegal retention with the same indictment number and case

number as the charges for which Plaintiff was tried. Plaintiff was

led to believe that he was on trial for theft by deception. 

Plaintiff alleges that Defendants Walker, deputy in charge of

the Public Defender’s Office, Gorman and Luciano all conspired to

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guarantee that he did not have effective assistance of counsel. 

Plaintiff seeks a declaration that the acts and omissions described

in the complaint violated Plaintiff’s rights; compensatory damages

in the amount of $1,875,000.00; punitive damages in the amount of

$1,000,000.00; a jury trial on all issues triable by jury and

Plaintiff’s costs incurred in this suit. 

II. DISCUSSION

A. 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.

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.

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Kerner, 404 U.S. 519, 520-21 (1972)); 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.” See id. at 1948. 

The Supreme Court's ruling in Iqbal emphasizes that a plaintiff

must demonstrate that the allegations of his complaint are

plausible. See id. at 1949-50; see also Twombly, 505 U.S. at 555,

& n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).

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B. Analysis

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. West v. Atkins, 487 U.S. 42, 48, 108

S.Ct. 2250, 101 L.Ed.2d 40 (1988); Piecknick v. Pennsylvania, 36

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

1. Public Defenders

Plaintiff asserts that the public defender defendants, Walker

and Gorman, rendered ineffective assistance of counsel in violation

of his Sixth Amendment rights. This claim is not actionable at

this time in a § 1983 action. First, these defendants are not

subject to liability under § 1983 because they are not state

actors. A public defender “does not act under color of state law

when performing a lawyer's traditional functions as counsel to a

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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).

To the extent that Plaintiff is alleging state action by

virtue of a conspiracy between these public defender defendants and

the state prosecutor, such claim must be dismissed at this time for

failure to state a claim. Plaintiff fails to satisfy the pleading

standard under Iqbal. Indeed, Plaintiff merely recites a

“threadbare” conspiracy cause of action, supported only by bald

conclusory statements, with no factual corroboration that would

suffice to state a claim under even the Rule 8 pleading standard.

See Iqbal, 129 S.Ct. at 1949-50.

Moreover, even if Plaintiff had pled facts establishing that

his attorney is 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 opportunity to raise

before the state court. See Younger v. Harris, 401 U.S. 37 (1971).

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To the extent that Plaintiff's criminal trial or sentencing is

no longer pending, and he has been sentenced on any state charges,

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 of the

public defender defendants 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).

2. Prosecutorial Immunity

Next, Plaintiff appears to assert a claim of prosecutorial

misconduct against Defendant Luciano for allegedly conspiring with

the public defenders to deprive Plaintiff of his right to counsel. 

“[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

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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 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,

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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, it appears that Plaintiff attacks only actions taken by

the prosecutor in his official capacity as an advocate for the state

in connection with plea negotiations and decisions regarding the

nature of charges to pursue. Moreover, as discussed above,

Plaintiff's allegations of a conspiracy between the prosecutor and

the public defender defendants are nothing more than threadbare,

conclusory statements that fail to satisfy the pleading requirements

under Rule 8. See Iqbal, 129 S.Ct. at 1949-50. Accordingly, he is

entitled to absolute immunity and all claims against Defendant

Luciano will be dismissed with prejudice. Cf. Rose v. Bartle, 871

F.3d 331, 347 (3d Cir. 1989) (allegation that prosecutor engaged in

conspiracy to maliciously prosecute does not affect the prosecutor's

absolute immunity from damages resulting from the allegedly

malicious prosecution).

IV. CONCLUSION

For the reasons set forth above, all claims will be dismissed,

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A (b)(l), for

failure to state a claim. However, because it is conceivable that

Plaintiff may be able to supplement his pleading with facts

sufficient to state a claim for violation of his constitutional

rights by his public defender, the Court will grant Plaintiff leave

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to move to re-open and to file an amended complaint. An 2

appropriate order follows. 

Dated: December 6, 2011

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Plaintiff should note that when an amended complaint is filed, the

2

original complaint no longer performs any function in the case and “cannot be

utilized to cure defects in the amended [complaint], unless the relevant

portion is specifically incorporated in the new [complaint].” 6 Wright, Miller

& Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the allegations in the

original complaint, but the identification of the particular allegations to be

adopted must be clear and explicit. Id. To avoid confusion, the safer course

is to file an amended complaint that is complete in itself. Id.

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