NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

ANTHONY J. JOHNSON, :

: Civil Action No. 11-4677 (RMB)

Plaintiff, :

:

 v. : OPINION

:

WAYNE MAYNARD, ESQ., et al., :

:

Defendants. :

_________________________________:______

This matter comes before the Court upon two motions by the

Plaintiff Anthony J. Johnson (“Plaintiff”), see Docket Entries

Nos. 9 and 13, one seeking to amend his original complaint and

one seeking reconsideration of this Court’s prior order. See id. 

For the reasons detailed below, the motion to amend will be

granted, and Plaintiff’s amended pleading will be dismissed for

failure to state a claim. Plaintiff’s motion for reconsideration

will be granted in form and denied in substance. See Pena-Ruiz

v. Solorzano, 281 F. App’x 110, n.1 (3d Cir. 2008) (a motion for

reconsideration is deemed “granted” when the court addresses the

merits of that motion; however, the court may reach a disposition

identical, either in its rationale or in its outcome, or in both

regards, to the one previously reached). In light of the content

of the complaint and Plaintiff’s motions at bar, and taking

notice of Plaintiff’s other litigation commenced in this District

prior to the instant matter but raising the identical challenges
to those raised here, the Court will terminate this matter as duplicative.

I. BACKGROUND

According to the exhibits upon which Plaintiff relied, the

events underlying Plaintiff’s claims began unfolding at 5 a.m. on

September 12, 2009, at a Wawa store located in Sicklerville, New

Jersey (“Wawa Store”). See Docket Entry No. 1-2, at 14. 1

Specifically, Daphne Hill (“Hill”) entered the Wawa Store and

“attempted to use a stolen credit card” and a stolen debit card

in order “to purchase cigarettes,” “two T-mobile gift cards” and

“ten Visa gift cards worth one hundred dollars each.” Id. 

Because the stolen credit card was issued in the name of Anna

Kelden (“Kelden”), the cashier asked Hill to produce

identification. In response, Hill presented a driver’s license

issued in Kelden’s name but bearing Hill’s photo. See id. 

Concerned with the high-dollar-value of the transactions, the

cashier then summoned a manager, who also examined Hill’s credit

and debit cards, as well as the driver licence. The manager

noticed that one of the cards had a photo markedly different from

that on the driver’s license. See id. 

Upon realizing that the cards and driver’s license were

either stolen or forged, or some other form of fraud was being

 Wawa is Pennsylvania-headquartered franchise holding a 1

chain of stores in New Jersey, Pennsylvania, Delaware, Maryland,

Virginia and Florida; it employs over 18,000 people. See

http://www.wawa.com/wawaweb/About.aspx. 

2
attempted, the “[m]anager . . . went to his office and contacted

the [p]olice”; taking notice of that development, Hill left the

Wawa Store and “fled in a Ford SUV” (“SUV”). Id. The police 

stopped “a vehicle matching [the SUV]” the one in which Hill fled

a short distance away from the Wawa Store. Id.

When the SUV was stopped, the officers found it occupied by

Kevin Spence (“Spence”), Hill, Plaintiff and Michelle Salamone

(“Salamone”). Id. After the four were ordered out of the SUV

and searched, a large amount of cash, numerous “stolen credit

cards,” “fraudulent driver licenses” and Social Security

documents issued to other persons’ names were discovered. All

four were informed of their Miranda v. Arizona, 384 U.S. 436

(1966), rights and detained for further investigation. See id. 2

Hill, upon entering a Miranda waiver, made a statement

informing the police of her drug addiction, which she supported

by her fraudulent credit card schemes performed at various

stores, such as Walmart, Target and Macy’s, as well as at various

hotels and casinos. See id. at 14-15. While naming Spence as

her main co-conspirator, Hill stated that Plaintiff was the key

player in the schemes since he was the one: (a) producing

fraudulent driver’s licenses and adding Hill’s photograph onto

them; and (b) stealing “credit cards at local movie theaters

 Plaintiff asserted, in this matter, that he was not given 2

his Miranda rights upon his arrest.

3
[where Plaintiff] crawled around on the floor,” going through the

pocketbooks of movie-goers. Id. at 15. Salamone, too, entered a

waiver and made a statement wholly supporting Hill’s account and

implicating Spence and Plaintiff. Hill and Salamone also

detailed Salamone’s role, which was very limited. See id. 3

Meanwhile, an investigation of the SUV revealed that it had

been rented to Velada Gibson (“Gibson”) who: (a) stated that the

SUV was taken by Plaintiff, Gibson’s acquaintance, without her

permission; but(b) refused to provide police with any additional

information; and ©) did not respond to police follow-up calls. 

See id. Upon that development, police officers had a search

warrant issued as to the SUV. See id. That search revealed two

driver’s licenses hidden in the window cavity, one being Kelden’s

actual license and the other one falsely issued on Kelden’s name

but bearing Hill’s photo, that is, the forged driver’s licence

that Hill attempted to use at the Wawa Store. See id. Also, a

laptop was located on the “passenger seat”; inside it were

 According to Hill and Salamone’s statements, Salamone met 3

Hill, Spence and Plaintiff just two days prior to the Wawa Store

incident; she went with them to a movie theater (where she merely

watched a movie) and then took a road trip with them, during

which she was asleep. See Docket Entry No. 1-2, at 14-15. Her

involvement in Hill, Spence and Plaintiff’s schemes was limited

to a single withdrawal of funds through the use of a credit card

Salamone either knew or suspected to be stolen; she handed the

entire withdrawal to Hill, Spence and Plaintiff. See id. at 15. 

On September 12, 2009, i.e., the day of the Wawa Store incident,

Salamone entered the Wawa Store together with Hill, but only to

purchase a cup of coffee in a legitimate transaction. See id.

4
special “plastic blanks . . . used for [production of] fraudulent

[d]river’s [l]icenses.” Id. In addition, a Fargo Card Printer

and spare cartridge were located in the trunk of the SUV; the 4

printer already had a special plastic card inserted in it, with

“the back of a NJ [d]river’s licence imprinted” on one side,

while the other side was still left blank. Id. at 16. 

Hill, Spence and Plaintiff were charged with criminal

offenses and “processed.” Id. “Hill was released on her own

recognizance,” and “Spence posted bail,” while Plaintiff failed

to post bail and, thus, remained in custody. Id. Thereafter, 5

Hill, Spence and Plaintiff were indicted, see id. at 22, 39, and

Plaintiff retained Wayne Maynard, Esq. (“Maynard”) as his defense

counsel. See Docket Entry No. 2, at 2. With Maynard’s

assistance, Plaintiff was eventually offered and accepted a plea,

pursuant to which he pled guilty to a disorderly person offense. 

He was issued a $250 fine and no prison term was imposed. Id. 6

 Fargo Card printers are utilized to produce high-security 4

documents verifying one’s identity, e.g., driver’s licenses. See

http://www.hidglobal.com/products/card-printers/fargo.

 No charges were filed against Salamone. 5

 However, right after his conviction on the New Jersey 6

disorderly conduct charges, Plaintiff was placed in federal

custody on the charges filed against him in the Eastern District

of Pennsylvania. See infra, this Opinion, note 10. Plaintiff’s

arrest on the Eastern District of Pennsylvania charges took place

on November 16, 2011. See United States v. Johnson, Crim. Action

No. 11-mj-1590 (E.D. Pa.) (docket entry dated Nov. 16, 2011). 

5
After entering his plea, Plaintiff attempted to withdraw it,

asserting that Maynard “manipulated” him into taking the plea by

recommending to admit, during his plea hearing, that Plaintiff

initially utilized one of his aliases, “Kevin Johnson,” when the

police stopped the SUV. See Docket Entry No. 1-2, at 43. 7

Plaintiff also asserted that Maynard de facto coerced him to

accept the plea by declining to make several motions Plaintiff

desired and by proceeding in a fashion Plaintiff found unduly

delayed, as well as by failing to inform Plaintiff that Hill had

violated the terms of her release and “went on the run.” Id. at

44. Concluding that, without Hill as the State’s witness, “the

prosecution had no case against [him],” Plaintiff deduced that

the prosecutor and Maynard must have conspired to obtain his

conviction by “forcing” Plaintiff to accept the plea offer. Id. 8

Claiming that he was also denied a speedy trial and effective

assistance of counsel, and subjected to selective law enforcement

/selective prosecution on the basis of his race, Plaintiff moved 9

 Plaintiff is known to law enforcement officers under many 7

aliases, e.g., “Larry Jones,” “Anthony Johnson,” “James Johnson,”

“Kevin Johnson,” “Larry Johnson,” “Kevin Willford,” “Kevin

Williams,” etc. See Docket Entry No. 1-2, at 5. 

 Plaintiff’s submissions made in his other matter 8

commenced in this District indicate that Hill’s violation of her

terms of release (that is, if such violation actually took place)

was short-lived, since Hill pled guilty to the charges against

her and was duly sentenced. See infra, this Opinion, note 14.

 It appears that Salamone was a Caucasian, while 9

Plaintiff, Hill and Spence were African-Americans. It is on the

6
for withdrawal of his guilty plea. See generally, Docket Entries

Nos. 1-2 and 2. 

The state court denied his application, and his New Jersey

conviction remained intact. Two years passed. Thereafter, being

incarcerated on federal charges, Plaintiff commenced the instant

matter. See Docket Entries Nos. 1 and 2. Here, he asserted – 10

basis of this fact, Plaintiff alleged “racial profiling” and

“selective prosecution” / “selective law enforcement.” See

generally, Docket Entries Nos. 1-2 and 2. 

 Plaintiff’s initial federal action was United States v. 10

Johnson, Crim. Action No. 11-mj-1590 (E.D. Pa.). The Eastern

District of Pennsylvania held Plaintiff’s identity hearing and,

upon determining the same, transferred his prosecution to the

District of Connecticut (“D. Conn.”). See United States v.

Johnson, Crim. Action No. 11-mj-0297, Crim. Action No. 12-0027

(D. Conn.). The Connecticut prosecution yielded: (a) Plaintiff’s

trial to a jury; (b) his conviction on the charges of producing/

trafficking counterfeited access devices and fraud with

identification documents; (c) a 192-month term; and (d) $70,826

in restitution. See id. The Connecticut criminal complaint

stated that, prior to the Wawa Store incident, Plaintiff briefly

entered the general public upon his release from yet another

prison term; during that period, he was going to movie theaters

to crawl on the floor and steal credit cards from the purses of

female movie-goers, and then manufacturing false driver’s

licences bearing the names of the owners of these stolen credit

cards but having the photo of Plaintiff’s other co-conspirator, a

certain Jamie McGowan (“McGowan”), a Caucasian. See id., Docket

Entry No. 1, at 3-4. McGowan was using the stolen credit cards

and false driver’s licenses produced by Plaintiff to purchase

high-dollar-value gift cards, which Plaintiff then re-sold “for

half of their face value.” Id. at 4. Plaintiff’s first counsel

moved for and was granted withdrawal of representation upon her

averment that Plaintiff was “repeatedly [accusing her of being]

in conspiracy with them (the government, the court, and the U.S.

Marshal’s them (the government, the court, and the U.S. Marshal’s

Service).” Id. at 2 (parenthetical in original). As soon as

Plaintiff had his second counsel appointed, he moved for that

attorney’s dismissal. See id., Docket Entry No. 56. When that

motion was denied, the second appointed counsel himself moved for

7
as during his attempt to withdraw his New Jersey plea – that: (a)

the New Jersey prosecution was malicious; (b) that Maynard must

have conspired with both his prosecutor and the state judge to

convict Plaintiff; and ©) that Maynard’s performance was

deficient since he recommended Plaintiff to accept the plea,

refused to file the motions Plaintiff desired and, allegedly, did

not inform him about Hill’s violation of her terms of release. 

Plaintiff also asserted that Maynard coerced him into committing

a perjury since Maynard suggested to him to aver, during the plea

hearing, that Plaintiff had initially identified himself to the

police as “Kevin Johnson” and Plaintiff did aver so. See Docket

Entries Nos. 1 and 1-2.

The overriding “theme” of Plaintiff’s challenges is his

disappointment with the fact that his New Jersey prosecution

protracted long enough to allow the federal law enforcement

officers to take him into custody for the purposes of the

withdrawal, since – by then – Plaintiff had already filed a

grievance against him, also asserting coercion and conspiracy

between that attorney and the prosecutor. Id. at 76; see also

id., Docket Entry No. 108. Even when Plaintiff’s second counsel

was designated to act as merely a stand-by, Plaintiff nonetheless

insisted on full dismissal, still maintaining that his counsel

must have been conspiring with the prosecutor. See id., Docket

Entry No. 167. Meanwhile, Plaintiff’s co-conspirator, McGowan,

pled guilty. See id., Docket Entry No. 80. Moreover, a certain

Lashirelle Bryant (“Bryant”), Plaintiff and McGowan’s other coconspirator, cooperated with the Government and acted as a

Government witness against Plaintiff in the Connecticut matter. 

See id., Docket Entries Nos. 1 and 36. 

8
Connecticut prosecution. See Docket Entry No. 9, at 6-7 (“[The

prosecutor] and . . . Maynard . . . violated [Plaintiff’s] civil

rights . . . by keeping [him] incarcerated, using delay tactics,

knowing that [he] was going to be[]indicted by the [U]nited

[S]states [A]tto[rney]. . . . [The prosecutor and Maynard must

have engaged into a] conspiracy against [Plaintiff since they]

kept postponing [his New Jersey] case by requesting adjournments,

i.e., Maynard] made two of [such applications for adjournment,

and the prosecutor] made three of them . . . . [Plaintiff

believes that these applications were made] because the

Bridgeport [Connecticut] US Attorney[’]s Office needed more time

to investigate [Plaintiff’s federal] case. . . . [The prosecutor

violated Plaintiff’s rights because he] gave the US Attorney[’]s

[O]ffice . . . all the time they needed to build [Plaintiff’s

federal criminal] case”). 

11

Paramount here, all these claims had already been raised by

Plaintiff in another action he commenced in this District two and

a half months prior to his initiation of the instant matter. See

Johnson v. Camden County Prosecutors Office et al. (“Johnson-I”),

Civil Action No. 11-3588 (RMB) (D.N.J.) (filed June 22, 2011). 

Specifically, in Johnson-I, Plaintiff asserted that: (a) Maynard

 In other words, Plaintiff’s challenges stem from his 11

disappointment over the “lost opportunity” to escape his federal

arrest and federal prosecution.

9
conspired with his New Jersey prosecutor to convict him; (b) the

prosecutor and police officers engaged in “selective enforcement/

selective prosecution”; (c) the SUV was stopped and Plaintiff was

detained without probable cause; and (d) the prosecutor

maliciously prosecuted him. See id., Docket Entry No. 5, at 2- 12

14. 

Because Plaintiff’s obscure Johnson-I challenges did not

allow the Court to rule out that Plaintiff’s claims were

plausible but stated poorly due to his lack of legal

sophistication, the Court found it warranted to proceed his false

arrest and selective enforcement claims past the sua sponte

dismissal state. See id., Docket Entries Nos. 6 and 7. All

other claims were dismissed. See id. 

Fourteen months after commencement of Johnson-I, Plaintiff

moved to amend his Johnson-I complaint. See id., Docket Entry 13

No. 19. A week after that motion, he filed a motion for “summary

 In addition, in Johnson-I, Plaintiff maintained that his 12

Confrontation Clause rights were violated by Salamone’s released,

and that he was not given his Miranda rights upon his arrest.

 In his first amended Johnson-I pleading, Plaintiff 13

asserted that the police erred in believing Salamone and Hill’s

statements that Salamone’s involvement was highly limited. See

Johnson-I, Docket Entry No. 19. However, no statement made in

Plaintiff’s submissions made in Johnson-I or in this matter

indicates that the police was provided with any information

implicating Salamone in any act other than a single withdrawal of

the funds she handed to Hill, Spence and Plaintiff; rather,

Plaintiff is maintaining that the police should have investigated

Salamone in the hopes of finding some inculpatory evidence. 

10
judgment” asserting his entitlement to a default judgment. See 14

id., Docket Entry No. 20. Thereafter, he renewed his motion for

appointment of pro bono counsel. See id., Docket Entry No. 21. 

These motions were denied by the Magistrate Judge. See id.,

Docket Entries Nos. 22, 23. In response, Plaintiff filed another

motion to amend and a motion for reconsideration. See id.,

Docket Entries Nos. 24 and 25. Those motions were also denied. 

See id., Docket Entries Nos. 26 and 28. 

At that juncture, the Johnson-I Defendants were served and

filed an answer, see id., Docket Entries Nos. 30, 31 and 32; that

development prompted Plaintiff to file a multitude of letters and

motions, e.g., another “motion to amend,” a “motion to produce,”

a “motion for extension of time,” a “motion to take depositions,”

a yet another “motion to amend,” a “motion to refile,” another

“motion to amend,” a “motion to deny Defendant’s objections,” 

still another “motion to amend,” a “motion to compel,” and

another “motion for summary judgment.” See id., Docket Entries

Nos. 29, 34, 35, 36, 40, 41, 43, 44, 45, 50, 51, 52, 60. The

 Plaintiff’s Johnson-I submissions conceded that both 14

Hill and Spence pled guilty to the charges based on the schemes

they conducted jointly with Plaintiff; Plaintiff also conceded

that Hill and Spence were sentenced to three- and five-year

terms, respectively. See Johnson-I, Docket Entry No. 19. 

Plaintiff, however, insisted that Hill and Spence must have been

coerced into pleading guilty. See id. 

11
Magistrate Judge thereafter appointed Plaintiff pro bono counsel. 

See id., Docket Entries Nos. 68 and 70. 

However, while represented in Johnson-I, Plaintiff proceeded

with litigating the instant matter pro se. The Court clarified

to Plaintiff the pleading standard of Rule 8, as detailed in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), i.e., the decision that

established “the final nail-in-the-coffin for the ‘no set of

facts’ standard” coined in Conley v. Gibson, 355 U.S. 41, 45-46

(1957). The Court also explained to Plaintiff that his

conspiracy claims were deficient for failure to assert facts

showing that a conspiracy actually took place. However, 15

granting him the benefit of the doubt and operating on a

presumption that he was wishing to challenge the events different

from those challenged in Johnson-I, the Court granted Plaintiff

leave to amend. See id., Docket Entry No. 5, n.2 (clarifying

that the amended complaint, if filed, would fully supercede the

original pleading, even if the amended complaint were to refer to

transactions raised in the original complaint, which duplicated

Johnson-I).

 In addition, the Court pointed out that claims against 15

Maynard alleging ineffective assistance were deficient for lack

of color of law, that the malicious prosecution claim was unripe

because Plaintiff’s New Jersey conviction was never overturned,

that Miranda challenges were not cognizable in civil rights

review, that Confrontation Clause challenges could be raised only

with regard to a trial-like setting, etc. See Instant Matter,

Docket Entry No. 5.

12
Now, Plaintiff’s motions at bar indicate with clarity that

he has no challenges other than those raised in Johnson-I. 

Therefore, the instant matter will be terminated as duplicative.

The power of a federal court to prevent duplicative

litigation is intended “to foster judicial economy and

the 'comprehensive disposition of litigation,'” Curtis

v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)

(quoting Kerotest Manufacturing Co. v. C-O-Two Fire

Equipment Co., 342 U.S. 180, 183 (1952)), and “to

protect parties from 'the vexation of concurrent

litigation over the same subject matter.'” Id.

(quoting Adam v. Jacobs, 950 F.2d 89, 93 (2d Cir.

1991)). 

Porter v. NationsCredit Consumer Disc. Co., 2003 Bankr. LEXIS

933, at *33 (Bankr. E.D. Pa. 2003). 

Plaintiff’s instant claims, be they assertions or the

exhibits upon which Plaintiff relied for the purposes of his

pleading and his motions, will be read jointly with his Johnson-I

challenges. See In re Synchronoss Secs. Litig., 705 F. Supp. 2d

367, 390 (D.N.J. 2010) (quoting Jackson v. Broad. Music, Inc.,

2006 U.S. Dist. LEXIS 3960, at *18 (S.D.N.Y. Jan. 31, 2006), for

the observation that “the court may take judicial notice of . . .

‘admissions in pleadings and other documents in the public record

filed by a party in other judicial proceedings that contradict

the party’s factual assertions in a subsequent action’ without

converting the motion into one for summary judgment”), quoting,

in turn, Harris v. New York State Dep’t of Health, 202 F. Supp.

13
2d 143, 173 (S.D.N.Y. 2002), and citing Munno v. Town of

Orangetown, 391 F. Supp. 2d 263, 268 (S.D.N.Y. 2005)).

II. STANDARD OF REVIEW

Plaintiff keeps insisting that his pleading “should not be

dismissed unless it appears that the [P]laintiff can prove no set

of facts which would entitle him to relief,” as stated in Conley

v. Gibson. See Instant Matter, Docket Entry No. 13, at 3-4. 

Plaintiff errs. 

As this Court has already explained, the pleading standard

of Rule 8 is that detailed in Iqbal; thus, Plaintiff cannot plead

his mere guesses or his self-serving deducements, speculations,

bold conclusions, or mere elements of his claims; moreover, it is

insufficient for him to merely plead the facts compatible with a

wrongful conduct. His facts should show that the alleged wrong

was more than possible. See Iqbal, 556 U.S. 696 (“[W]ithout some

further factual enhancement, [the complaint] stops short of the

line between possibility and plausibility”). Moreover, Plaintiff

cannot obtain the facts he has to plead by conducting discovery:

he would become entitled to conduct discovery after he states the

facts amounting to a plausible claim. See Iqbal, 556 U.S. at 686

(“[T]he question [of sufficiency of] pleadings does not turn [on]

the discovery process. [The plaintiff] is not entitled to

14
discovery [where the complaint asserts some wrongs] ‘generally,’

[i.e., as] a conclusory allegation”). 

III. SUBSTANTIVE DEFICIENCIES

One of Plaintiff’s claim is that of conspiracy between

Maynard, Plaintiff’s prosecutor and his state judge. In a line

of cases beginning with Griffin v. Breckenridge, 403 U.S. 88

(1971), the Supreme Court has made clear what a § 1985 plaintiff

must allege facts showing: “(1) a conspiracy; (2) 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; and (3) an act in

furtherance of the conspiracy; (4) whereby a person is injured in

his person or property or deprived of any right or privilege of a

citizen of the United States.” United Bhd. of Carpenters &

Joiners v. Scott, 463 U.S. 825, 828-29 (1983) (citing Griffin,

403 U.S. at 102-03). 

16

 Despite its application to private conspiracies, § 16

1985(3) was not intended to provide a federal remedy for “all

tortious, conspiratorial interferences with the rights of

others,” or to be a “general federal tort law.” Griffin, 403

U.S. at 101-02. The Griffin Court emphasized that, because §

1985(3) requires the “intent to deprive of equal protection, or

equal privileges and immunities,” a claimant must allege “some

[class-based] invidiously discriminatory animus behind the

conspirators’ action.” Id. at 102 (emphasis removed). There are

two distinct aspects to such a claim: a plaintiff must allege

15
While the courts are “mindful that direct evidence of a

conspiracy is rarely available and that the existence of a

conspiracy must usually be inferred from the circumstances . . .

, the rule is clear that allegations of a conspiracy must provide

some factual basis to support the existence of the elements of a

conspiracy: agreement and concerted action.” Capogrosso v.

Supreme Ct. of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009) (quoting

Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)). 

Here, Plaintiff failed to assert facts stating a viable

conspiracy claim. He showed no conspiratorial animus against him

on the part of the prosecutor: indeed, Hill and Spence, both

African-Americans, were also prosecuted and also offered pleas.17

Analogously, Plaintiff failed to allege any facts showing

concerted actions between Maynard and the prosecutor: he merely

offered this Court his deducement based on the facts that: (1)

Maynard sought two adjournments, while the prosecutor sought

three; and (2) for a period of time, Hill was, allegedly,

facts showing that the conspiracy was motivated by discriminatory

animus against an identifiable class and, in addition, the facts

showing that the discrimination was invidious. See Aulson v.

Blanchard, 83 F.3d 1, 4-5 (1st Cir. 1996).

 Since Maynard did not represent either Hill or Spence, 17

it is self-evident that there could not have been any conspiracy

between Maynard and the prosecutor as to Hill and Spence. 

16
violating the terms of her release. These two facts do not

support a plausible claim; they hardly state a possible one.18

Simply put, Plaintiff cannot convert his disappointment with

being taken into federal custody upon conclusion of his New

Jersey prosecution into a viable claim. A criminal defendant has

no constitutional right to a dismissal of his charges during the

brief interim when one of the government witnesses is missing. A

fortiori, a criminal defendant has no constitutional right to

release facilitating his escape from the reach of law enforcement

authorities. Cf. Acevedo v. CFG Health Sys. Staff, 2010 U.S.

Dist. LEXIS 120136, at *21 (D.N.J. Nov. 12, 2010) (“Plaintiff's

claim [if taken to its logical conclusion] would turn civil

rights law upon its head”). 

Plaintiff’s other claim, asserting that the SUV was stopped

and he was arrested without probable cause is contradicted by the

very exhibits upon which he relied in his original and amended

pleadings filed here, and in his motions. “The proper inquiry in

a Section 1983 claim based on false arrest . . . is not whether

the person arrested in fact committed the offense but whether the

 Two applications for adjournment by a defense counsel, 18

or three applications for adjournment by a prosecutor cannot show

a concerted action. Had it been otherwise, every prosecution

could be labeled “conspiratorial.” Moreover, if Hill were, in

fact, temporarily violating her terms of release, the prosecutor

was obligated to procure Hill’s attendance by all reasonable

means and, hence, properly sought adjournments while attempting

to locate and produce Hill.

17
arresting officers had probable cause to believe the person

arrested had committed the offense.” Dowling v. City of Phila.,

855 F.2d 136, 141 (3d Cir. 1988). “[W]hen an officer has probable

cause to believe a person committed even a minor crime[,] . . .

the balancing of private and public interests is not in doubt

[and t]he arrest is constitutionally reasonable.” Virginia v.

Moore, 553 U.S. 164, 171 (2008). Correspondingly, a plaintiff

must state “the facts [showing that, under the] circumstances

within [the officer’s] knowledge, a reasonable officer could not

have believed that an offense had been or was being committed by

the person to be arrested.” Mosley v. Wilson, 102 F.3d 85, 94-5

(3d Cir. 1996); accord Revell v. Port Authority of New York, New

Jersey, 598 F. 3d 128, 137 n.16 (3d Cir. 2010). 

Here, Plaintiff’s exhibits show that the police officers

stopped the SUV and searched its occupants on the basis of the

information provided by the Wawa store manager about Hill’s

attempt to commit fraudulent purchases. That information, in and

by itself, already supplied a sufficient probable cause for the

stop and search. When the search produced a large amount of

cash, stolen credit cards, fraudulent driver licenses and Social

Security documents issued to other persons’ names, that

discovery, in and by itself, supplied a sufficient probable cause

for arrest of all four occupants, as well as for investigation of

the SUV. Thus, Plaintiff’s exhibits filed here negate his false

18
arrest challenges. Accord Gutierrez v. Peters, 111 F.3d 1364,

1374 (7th Cir. 1997) (“[A] plaintiff can plead himself out of

court by alleging facts which show that he has no claim . . . . 

Allegations in a complaint [or relied upon in a complaint] are

binding admissions . . . and admissions can of course admit the

admitter to the exit from the federal courthouse”) (quoting

Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995)). 

Plaintiff’s next claim is that of selective law enforcement

and selective prosecution. “A decision to prosecute is 19

selective and violates the right to equal protection when it is

made on a discriminatory basis with an improper motive.” United

States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989). To state

a selective prosecution claim, a plaintiff must “provide evidence

that persons similarly situated have not been prosecuted.” Id.

(emphasis supplied); see also Yick Wo v. Hopkins, 118 U.S. 356

(1886) (holding officials liable for “illegal discrimination”

when they “applied and administered” a facially neutral law “with

an evil eye and an unequal hand”). Thus, two factors must be

 The claims of “selective prosecution” and “selective 19

enforcement” are different Fourteenth Amendment claims, and when

a plaintiff’s allegations allege solely police misconduct, the

claim should be for selective enforcement, while claims adding an

allegedly wrongful prosecutorial conduct yield a selective

prosecution challenge. See Davis v. Malitzki, 451 F. App’x 228,

2011 U.S. App. LEXIS 23029, at *17, n.11 (3d Cir. Pa. 2011)

(citations omitted). “However, the standards are virtually

identical.” Id. 

19
proved, namely, that persons similarly situated were not

prosecuted, and that the decision to prosecute was made on the

basis of an unjustifiable standard, such as race, religion or

“some other arbitrary factor.” Schoolcraft, 879 F.2d at 68

(emphasis supplied). 

The distinction in the circumstances of the underlying

transaction is the factor decisive for the purposes of the equal

protection analysis. For instance, in Crane v. Cumberland

County, 64 F. App’x 838 (3d Cir. 2003), the Court of Appeals

found plaintiffs did not demonstrate that others were similarly

situated or prosecuted on the basis of his race, since the

arrestee was the only person who wielded a knife during the

altercation in which he was arrested. 

Here, Plaintiff’s submissions concede that Salamone and

Hill’s statements informed the police about only one withdrawal

Salamone made with the credit card she knew or suspected stolen,

and both Salamone and Hill averred that Salamone passed all funds

to Hill, Spence and Plaintiff. Thus, Salamone was not similarly

situated to either Plaintiff or Hill/Spence, who conducted

systemic and complex fraudulent schemes, and who retained the

proceeds of their wrongful acts. Correspondingly, the police

officers’ election to release Salamone without a charge does not

qualify as either unjustifiable or racially motivated. While

Plaintiff maintains that the police officers should have further

20
investigated Salamone and attempted to find inconsistencies in

her statements, or in the statements Hill made about Salamone,

Plaintiff’s position plays against him, since he effectively

concedes that there was virtually no inculpatory evidence against

Salamone. Therefore, Plaintiff’s selective enforcement and/or

selective prosecution claims fails to meet the plausibility

benchmark.

Plaintiff also introduced a “racial profiling” claim. 

However, that largely mimics the one of selective enforcement, 

see Whren v. United States, 517 U.S. 806, 813 (1996), and, hence,

fails here for the reasons already stated supra. “To prevail on

an equal protection claim in the racial profiling context, [a

plaintiff must] show that the challenged law enforcement practice

had a discriminatory effect and [in addition] was motivated by a

discriminatory purpose.” Carrasca v. Pomeroy, 313 F.3d 828, 834

(3d Cir. 2002). For the purposes of the first prong of this

inquiry, a plaintiff must “show that [he] is a member of a

protected class and [in addition] that [he] was treated

differently from similarly situated individuals in an unprotected

class.” Bradley v. U.S., 299 F.3d 197, 206 (3d Cir. 2002)

(emphasis supplied). The second prong was examined in Iqbal, 556

U.S. at 676-77, where the Supreme Court pointed out that a

plaintiff asserting an equal protection claim “must plead [the

facts showing] that the defendant acted with a discriminatory

21
purpose [in order to permit a reasonable inference that the

government-official defendant acted] for the purpose of

discriminating on account of race.” 

Here, Plaintiff concedes and his exhibits demonstrate that

the police officers were informed by Hill about: (a) Plaintiff

being the key player in Hill’s and Spence’s fraudulent schemes;

and (b) Salamone’s involvement being limited to a single

withdrawal of the cash funds that she did not keep. Therefore,

there is a qualitative distinction between Plaintiff and

Salamone, and he failed to show that the police released Salamone

without a charge because of a discriminatory purpose. 

Plaintiff’s remaining challenges warrant no review beyond

that already provided in this Court’s prior decisions, nor do

they warrant a vacatur of the Court’s prior decisions. Rather, 20

it appears from a closer look at the totality of Plaintiff’s

submissions made in this matter and in Johnson-I that Plaintiff

may not have a single viable challenge. This calls into question

the continuation of the appointment of Plaintiff’s counsel in

Johnson-I where Plaintiff’s vague, but exceedingly voluminous and

numerous challenges led the Magistrate Judge to conclude that

 Plaintiff’s Miranda challenges cannot be litigated in a 20

civil action, his claims against Maynard – except for those

asserting conspiracy – fail for the lack of color of law, his

malicious prosecution claims are unripe in light of his New

Jersey conviction never being overturned, etc. 

22
Plaintiff had viable claims but lacked the legal sophistication

to articulate them. See Instant Matter, Docket Entry No. 68, at

3-4 (“Plaintiff requests the Court grant him pro bono counsel

because he ‘has a six grade education,’ ‘no professional job

skills’ and ‘no law library at the facility where he is being

housed . . . . [Therefore,] the Court finds that it will request

pro bono counsel for Plaintiff at this time”) (brackets omitted,

emphasis supplied). Now, a continuation of counsel’s 21

appointment in Johnson-I might prove unwarranted and a waste of a

valuable judicial resource unless Plaintiff shows that he has a

viable claim.

[F]irst and foremost, the district court considers

whether an indigent plaintiff raises a discernible

claim from which at least an arguable merit could be

distilled. See Tabron [v. Grace], 6 F.3d [147,] 156

[(3d Cir. 1993)] (“[T]he district court must consider

as a threshold matter the merits of the plaintiff's

claim. ‘Before the court is justified in exercising

its discretion in favor of appointment, it must first

appear that the claim has some merit in both fact and

law’”) (quoting, inter alia, Maclin v. Freake, 650 F.2d

885, 887 (7th Cir. 1981), which, in turn, quoted Spears

v. United States, 266 F. Supp. 22, 25-26 (S.D.W. Va.

1967)) . . . . Simply put, the presence of a

discernible claim is a necessary requirement for

appointing counsel [and for continuing that

appointment]. See Tabron, 6 F.3d at 156; Maclin, 650

F.2d at 887; Spears, 266 F. Supp. at 25-26; cf. Fisher

v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 186 L. Ed.

2d 474, 2013 U.S. LEXIS 4701, at *26 (June 24, 2013)

(“[The] scrutiny must not be ‘strict in theory, but

 Plaintiff’s submissions made in the instant matter 21

suggest that he was less than forthcoming with the Magistrate

Judge.

23
fatal in fact.’ But the opposite is also true. [The]

scrutiny must not be strict in theory but feeble in

fact”) . . . .

Bacon v. Mandell, 2013 U.S. Dist. LEXIS 162144, at *18-19 (D.N.J.

Nov. 14, 2013).22

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to amend will

be granted. His amended pleading filed in this matter, being

read in conjunction with: (a) the exhibits attached to the

original complaint filed here; and (b) the statements he made in

his motions at bar, as well as in Johnson-I, will be dismissed

for failure to state a claim. His motion for reconsideration

will be denied for lack of merit or, in the alternative, as moot. 

Because Plaintiff’s statements made in the motions at bar

demonstrate that the challenges raised here are wholly

duplicative and attack the transaction already challenged in

Johnson-I, the instant matter will be terminated.

The Clerk will be directed to docket this Opinion and the

Order filed herewith in Johnson-I. The Court will address the

totality of Plaintiff’s challenges there; in the interim, the

Court’s final determination will be reserved. Additionally, the

Court’s determination as to continuation of the appointment of

 Correspondingly, this Court will direct the Clerk to 22

docket this Opinion and the accompanying Order in Johnson-I and

will address the issue of appointment of counsel there.

24
Plaintiff’s counsel in Johnson-I will be reserved and addressed

in that matter. An appropriate Order follows.

 

s/Renée Marie Bumb 

RENÉE MARIE BUMB, 

United States District Judge

Dated: December 23, 2013

25