BAYETTE v. VANAMBURGH

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

:

KOFI BAYETTE, :

: Civil Action No. 2:19-cv-13424 (BRM)

Plaintiff, :

:

v. : OPINION

:

SUSAN VANAMBURGH, et al., :

:

Defendants. :

:

Before this Court is pro se prisoner Kofi Bayette’s (“Plaintiff”) Complaint, filed pursuant

to 42 U.S.C. § 1983. (ECF No. 1.) Based on his affidavit of indigence (ECF No. 3), the Court

previously granted him leave to proceed in forma pauperis and ordered the Clerk of the Court to

file the Complaint. (ECF No. 2.)

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, and for good cause

appearing, the Complaint is DISMISSED.

I. BACKGROUND

In 1993, Plaintiff was tried and convicted of two counts of sexual assault; two counts of

burglary; two counts of possession of a weapon for unlawful purpose; two counts of criminal

restraint; and two counts of terroristic threats by a jury in Morris County.1 Defendant Susan E.

1 The factual allegations are taken from the 146 page Complaint and are accepted for purposes of

this screening only. The Court has made no findings as to the veracity of Plaintiff’s allegations.

Vanamburgh served as his public defender at trial. (ECF No. 1 at 8.) He alleges Defendant

Vanamburgh rendered ineffective assistance when she failed to call an expert to rebut the

testimony of the State’s expert. (Id. at 8-9.) She also failed to properly investigate whether one of

the State’s experts, Defendant Tighe, had proper credentials to serve as an expert witness. (Id. at

12.)

Plaintiff further alleges Defendant New Jersey State Police Laboratory has been “letting

their Forensic Science giving [sic] flawed testimony, to sent [sic] Black and poor people to prison.”

(Id. at 16.) Specifically, Defendants Tighe was employed by the Laboratory, and the Laboratory

permitted her to testify as an expert in Plaintiff’s trial even though she was not qualified. (Id. at

18.) In addition, the Laboratory

had the expert Gail Tighe, that the inconlosn [sic], so the New Jersey

State Police only could’n [sic] say that they can’t say that I did this,

but can’t say that I did not do it. Gail Tighe say she is an expert, so

why she couldn’t say were the hair came from.

(Id. at 20.) Finally, he alleges the Morris County Prosecutor’s Office had to have known Defendant

Tighe was not an expert but used her testimony anyway. (Id. at 33-34.)

Plaintiff is seeking monetary damages. (Id. ¶ 7.)

II. LEGAL STANDARD

A. Standard for a Sua Sponte Dismissal

Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66

to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions

in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress

against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with

respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte

dismiss any claim that is frivolous, is 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. This action is

subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because

Plaintiff is a prisoner who is proceeding as indigent.

According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers

‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To

survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient

factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir.

2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally construed,

“pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ... subjects,

or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

Therefore, 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, 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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

III. DECISION

A. Statute of Limitations

At the outset, it appears all Plaintiff’s claims would be time-barred. Claims under § 1983

are “governed by the applicable state’s statute of limitations” and therefore, Plaintiff’s claims,

which arose in New Jersey, are subject to a two-year limitations period. Dique v. N.J. State Police,

603 F.3d 181, 185 (3d Cir. 2010) (“[A] section 1983 claim arising in New Jersey has a two-year

statute of limitations.”). Federal law, however, governs when claims under § 1983 accrue. Kach v.

Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing Genty v. Resolution Trust Corp., 937 F.2d 899, 919

(3d Cir. 1991)). A § 1983 claim accrues and begins to run when a plaintiff knows of or has reason

to know of the injury. See Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998).

Significantly, accrual does not depend on whether the potential claimant knew or should have

known the injury constitutes a legal wrong. See Giles v. City of Philadelphia, 542 F. App’x 121,

123 (3d Cir. 2013). Rather, “a cause of action accrues when the fact of injury and its connection

to the defendant would be recognized by a reasonable person.” Kriss v. Fayette Cty., 827 F. Supp.

2d 477, 484 (W.D. Pa. 2011), aff’d, 504 F. App’x 182 (3d Cir. 2012). Accordingly, “[a]s a general

matter, a cause of action accrues at the time of the last event necessary to complete the tort, usually

at the time the plaintiff suffers an injury.” Kach, 589 F.3d at 634.

Here, all of Plaintiff’s claims center around the testimony of Defendant Tighe, which

occurred at his trial in 1993. He even acknowledges knowing Defendant Tighe’s testimony was

flawed at that time of trial. (ECF No. 1 at 8.) Plaintiff suffered his alleged injuries at that time and,

therefore, the statute of limitations began to run and expired two years later in 1995. The limitations

period may, however, be tolled under certain circumstances. State law governs whether the

limitations period should be tolled. McPherson v. United States, 392 F. App’x 938, 944 (3d Cir.

2010). A plaintiff may be entitled to equitable tolling under New Jersey law

where “the complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline to pass,” or

where a plaintiff has “in some extraordinary way” been prevented

from asserting his rights, or where a plaintiff has timely asserted his

rights mistakenly by either defective pleading or in the wrong

forum.

Cason v. Arie St. Police Dep’t, No. 10-497, 2010 WL 2674399, at *5 n.4 (D.N.J. June 29, 2010)

(quoting Freeman v. New Jersey, 788 A.2d 867, 879–80 (N.J. Super. Ct. App. Div. 2002)). Here,

Plaintiff’s Complaint does not demonstrate any basis for this Court to equitably toll the limitations

period.

B. Police Lab

Even if somehow considered timely, Plaintiff’s claims would still nevertheless be

dismissed. With regards to the “New Jersey State Police Lab,” any claims against it are subject to

dismissal because it is not considered a “person” under § 1983. Specifically, it is well-established

the State and state entities are not “persons” for purposes of § 1983, and thus, are not amenable to

suit under that statute. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); see also

Smith v. New Jersey, 908 F. Supp. 2d 560, 563 (D.N.J. 2012) (“Will has thus been held to

‘establish[] that the State and arms of the State . . . are not subject to suit under § 1983 . . . .”)

(quoting Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365 (1990)). In Will, for example,

the Supreme Court held the Michigan State Department of Police was not subject to suit under

§ 1983, because, as an arm of the state, it was not a “person” within the confines of § 1983. Id.

Indeed, following the Supreme Court’s decision in Will, courts within this District have routinely

dismissed § 1983 claims against the State Police on the grounds it is not a “person” subject to suit

under § 1983. See, e.g., Smith, 908 F. Supp. 2d at 563 (dismissing the plaintiff's § 1983 claims

“against the State of New Jersey and the New Jersey State Police because the state and arms of the

state may not be sued under § 1983”); Gonzalez v. Bobal, No. 13–1148, 2015 WL 1469776, at *3

(D.N.J. Mar. 30, 2015) (“Defendant New Jersey State Police is not amenable to suit under § 1983

because it is a subdivision of the State.”); Green v. N. Carolina State Bureau of Investigation

Crime Lab, 2011 WL 4074613, at *2 (W.D.N.C. Sept. 13, 2011) (“The North Carolina State

Bureau of Investigation Crime Lab is dismissed as a defendant because the SBI is not a “person”

under § 1983”).

According to Plaintiff’s own submission, Defendant Tighe, as an employee of the Lab, was

a State of New Jersey employee. (ECF No. 1 at 105.) Therefore, because the State Police Lab is

an arm of the State, and not a “person,” Plaintiff’s § 1983 claims against it are dismissed.2

C. Public Defender

Plaintiff’s claims against Defendant Vanamburgh are also subject to dismissal because

public defenders are not “state actors” under § 1983. See Vermont v. Brillon, 556 U.S. 81, 91

2 The claims against the Morris County Prosecutor’s Office are dismissed for the same reason. See

Mikhaeil v. Santos, 646 F. App’x 158, 161 (3d Cir. 2016) (“Because [the county prosecutor’s

office] is a state agency, not a local governmental body, it is not a person amenable to suit under

§ 1983.”) (citing Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 854–55 (3d

Cir. 2014) (New Jersey county prosecutor’s offices are considered state agencies for § 1983

purposes when fulfilling their law enforcement and investigative—as opposed to administrative—

roles). Here, the allegations against the Morris County Prosecutor’s office relate to its decision to

utilize Defendant Tighe as an expert during Plaintiff’s trial, which is squarely in the role of law

enforcement and renders it not a “person” under § 1983. Moreover, even if brought against an

individual prosecutor, the actions complained about would be covered by prosecutorial immunity.

See Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (“Use of the false testimony in

connection with the prosecution is absolutely protected”).

(2009) (“[T]he relationship between a defendant and the public defender representing him is

identical to that existing between any other lawyer and client. Unlike a prosecutor or the court,

assigned counsel ordinarily is not considered a state actor”) (citation and quotation omitted);

Walker v. Pennsylvania, 580 F. App’x 75, 78 (3d Cir. 2014) (public defenders and private attorneys

are not state actors when acting as defense counsel and “are absolutely immune from civil liability

under § 1983” for actions taken in that capacity). More specifically, “a public defender does not

act under color of state law when performing a lawyer’s traditional functions as counsel to a

defendant in a criminal proceeding.” Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); see also

Carter v. Kane, No. 17-3026, 2017 WL 6523355, at *2 (3d Cir. Dec. 21, 2017). All the allegations

against Defendant Vanamburgh are in her capacity as counsel to a defendant in a criminal

proceeding. Thus, Plaintiff has not satisfied the “under color of state law” element of § 1983.

Where a public defender conspires with the State to deprive an individual of his rights, the

public defender is not immune from civil liability under § 1983. See Tower v. Glover, 467 U.S.

914, 916–20 (1984) (finding a public defender who allegedly conspired with judges and the state

attorney general to obtain the criminal defendant's conviction was acting under color of state law);

Bierley v. Abate, 661 F. App’x 208, 209 n.3 (3d Cir. 2016) (noting “private individuals may

nonetheless be liable under § 1983 if they have conspired with or engaged in joint activity with

state actors”). In order to plead conspiracy under § 1983, a plaintiff must “provide some factual

basis to support the existence of the elements of a conspiracy: agreement and concerted action.”

Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009). A bare

allegation of an agreement is insufficient to sustain a conspiracy claim. See Brown v. Deparlos,

492 F. App’x 211, 215 (3d Cir. 2012).

Plaintiff does not provide any facts to suggest a conspiracy. He makes vague references to

the fact his attorney was trying to “help” prosecutors, but such conclusory and unsupported

statements are insufficient to state a conspiracy claim. Id. Therefore, the claims against Defendant

Vanamburgh are dismissed in their entirety.

D. Expert Witness

Finally, the allegations against Defendant Tighe are also insufficient to state a claim. While

the exact type of claim he intended to raise against Defendant Tighe is unclear, it would appear he

is attempting to state a malicious prosecution claim.3 A plaintiff raising a § 1983 claim for

malicious prosecution must plead:

(1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in [the plaintiff’s] favor; (3) the defendant

initiated the proceeding without probable cause; (4) the defendant

acted maliciously or for a purpose other than bringing the plaintiff

to justice; and (5) the plaintiff suffered [a] deprivation of liberty

consistent with the concept of seizure as a consequence of a legal

proceeding.

Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014). A plaintiff cannot make out a claim for

malicious prosecution unless he specifically alleges the criminal prosecution was terminated in his

favor. Id. Plaintiff has not alleged his criminal proceeding ended in his favor and, therefore, he

cannot maintain a malicious prosecution against anyone at this juncture.

Moreover, all of the allegations against Defendant Tighe appear to relate to her testimony

at Plaintiff’s criminal trial; specifically, her testimony regarding her own qualifications as an

expert. However, a witness enjoys absolute immunity from damages under § 1983 for false

testimony. See Briscoe v. LaHue, 460 U.S. 325, 330–46 (1983) (officer testifying in criminal trial

3 To the extent he intended to raise a different claim against her, Plaintiff is advised to explicitly

state such in any amended complaint.

enjoys absolute witness immunity for false testimony); Kulwicki v. Dawson, 969 F.2d 1454, 1467

(3d Cir. 1992) (witness testifying in judicial proceeding is absolutely immune for false testimony);

Williams v. Hepting, 844 F.2d 138, 143 (3d Cir. 1988) (witness is entitled to absolute immunity

from civil liability under § 1983 for perjured testimony at preliminary hearing and suppression

hearing).

As such, whether Plaintiff intended to bring a malicious prosecution claim, or some other

type of claim based on Defendant’s alleged false trial testimony about her qualifications, those

claims are dismissed.

IV. CONCLUSION

For the reasons stated above, the Complaint will be dismissed in its entirety pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which relief may be granted.

The claims against the Lab and Prosecutor’s Office are dismissed with prejudice. The claims

against Defendants Vanamburgh and Tighe are dismissed without prejudice. Because it is

conceivable Plaintiff may be able to supplement his pleading with facts sufficient to overcome the

deficiencies noted herein, the Court will grant Plaintiff leave to move to re-open this case and to

file an amended complaint with regard to the claims against Defendants Vanamburgh and Tighe.

An appropriate order follows.

Dated: December 17, 2019

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE