DALAL v. KRAKORA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AAKASH DALAL, Civil Action No. 21-3439 (MCA)

Plaintiff,

v.

JOSEPH E. KRAKORA, et al., MEMORANDUM OPINION

Defendants.

This matter has been opened to the Court on a motion to dismiss Plaintiff Aakash Dalal’s

Complaint filed by Deputy Attorney General Phoenix Nicole Meyers on behalf of Public

Defender Joseph Krakora, Deputy Public Defender Jean Hartmann, and retired Deputy Public

Defender Matthew Astore (“Defendants”). See ECF No. 4. For the reasons explained below, the

motion to dismiss is granted as to the damages claims against Defendants in their official

capacities only and is otherwise denied without prejudice.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Plaintiff is a prisoner currently incarcerated at South Woods State Prison. He has sued

Defendants along with unidentified Office of the Public Defender (“OPD”) employees, John

Does 1-10 (“State Defendants”), asserting violations of his civil rights pursuant to 42 U.S.C. §

1983 and the New Jersey Civil Rights Act (“NJCRA”). Specifically, Plaintiff alleges that

Defendants knew he was indigent but refused to withdraw from Plaintiff’s criminal appeal and

allow a private attorney to represent him unless Plaintiff and/or his family agreed to pay $20,000

for his prior representation by the OPD.

Plaintiff alleges that he has been incarcerated since March 12, 2012, on pending criminal

charges, Plaintiff’s Complaint ¶ 8, and was eventually convicted of unspecified charges and was

sentenced to 35-years in state prison. Id. at ¶ 10. Plaintiff alleges that prior to his incarceration,

he was a college student and was not employed while incarcerated. Id. ¶ 21.

Plaintiff initially sent a letter, via facsimile, to Public Defender Joseph Krakora

requesting representation from the OPD for his direct appeal on August 7, 2017. Id. at ¶ 11. The

next day, Secretarial Assistant Christina I. Bytz sent a letter to the Bergen County Superior Court

Criminal Division to determine whether Plaintiff was indigent. Id. at ¶ 12. Subsequently, the

OPD determined Plaintiff was indigent, and OPD attorney Frank Pugliese, Esq. entered a

“temporary” appearance on the Plaintiff’s behalf and filed a notice of appeal. Id. at ¶¶ 13-14.

Plaintiff alleges that between September 1, 2017, and April 1, 2018, he repeatedly called

the Appellate Section of the OPD to determine whether an attorney had been assigned to his case

and was advised that no attorney had been assigned. Id. at ¶ 16. During this same timeframe,

Plaintiff alleges that Defendants Krakora, Astore, and Hartmann determined that OPD would not

assign Plaintiff an attorney. Id. at ¶ 17.

Subsequently, in July 2018, a family member retained an attorney on Plaintiff’s behalf,

but Defendants advised the attorney that OPD would not withdraw from Plaintiff’s case unless

Plaintiff repaid OPD for $20,000 in costs. Complaint at ¶¶ 18-19. On July 17, 2018, OPD again

sent a letter to Bergen County Superior Court Criminal Division Manager to verify whether

Plaintiff was indigent, and Plaintiff’s indigency was confirmed. Id. at ¶¶ 20-21. Despite their

knowledge that that Plaintiff was indigent, Defendants nevertheless continued to refuse to

withdraw from the matter, which prevented Plaintiff’s retained attorney from representing him

on appeal. Id. ¶¶ 22.

Defendant Krakora subsequently negotiated an agreement with Plaintiff’s family member

to pay $7,500, and, upon receipt of the payment, Defendant Krakora then ordered Astore and

Hartmann to withdraw from representing Plaintiff. Id. at ¶¶ 23-24.

Plaintiff alleges that similarly situated indigent criminal defendants are routinely assigned

counsel by Defendants and/or OPD without additional expense, and that Defendants’ alleged

misconduct denied him the counsel of his choice, substantially delayed his appeal, and caused

him to incur financial obligations in violation of his constitutional rights. Id. at ¶¶ 25-26. Plaintiff

specifically asserts violations of his Sixth Amendment right to counsel and Fourteenth

Amendment right to equal protection, as well as a civil rights conspiracy claim. Plaintiff brings

his claims pursuant to § 1983 and the NJCRA and he seeks compensatory, punitive, and nominal

damages and injunctive relief.1

This matter was initially filed in the Superior Court of New Jersey, Law Division, Essex

County, and was removed to the District of New Jersey by Defendants. See ECF No. 1.

Defendants filed the instant motion to dismiss the Complaint pursuant to Fed. R. Civ. P.

12(b)(6). ECF No. 4. Plaintiff opposes the motion to dismiss, ECF No. 6, and Defendants have

submitted their reply. ECF No. 7. The motion to dismiss is fully briefed and ready for

disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for

failure to state a claim upon which relief can be granted.” Fed. R .Civ. P. 12(b)(6). On a motion

to dismiss for failure to state a claim, the moving party “bears the burden of showing that no

1 The Court does not construe the Complaint to raise any state law claims other than the NJCRA

claims.

claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing

Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)); United Van Lines,

LLC v. Lohr Printing, Inc., No. CIV. 11–4761, 2012 WL 1072248, at *2 (D.N.J. Mar. 29, 2012).

When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts first separate

the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). All reasonable inferences

must be made in the plaintiff’s favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314

(3d Cir. 2010). As a pro se litigant, Plaintiff is entitled to liberal construction of his complaint.

See Liggon–Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). To survive

dismissal under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,

(2009) (internal quotation marks and 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.” Id.

III. ANALYSIS

In the motion to dismiss, Defendants make two arguments for dismissal of Plaintiff’s

Complaint. First, they argue that Plaintiff’s claims are subject to dismissal because Defendants

are not “persons” under § 1983. Second, they argue that Plaintiff’s NJCRA claims are subject to

dismissal because Defendants are entitled to absolute immunity. The Court addresses these

arguments in turn.

“To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of

a right protected by the Constitution or laws of the United States that was committed by a person

acting under the color of state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); see also

Woodyard v. Cnty. of Essex, 514 F. App’x. 177, 180 (3d Cir. 2013) (noting that section 1983

provides “private citizens with a means to redress violations of federal law committed by state

[actors]”). It is well-established that “a suit against a state official in his or her official capacity is

not a suit against the official but rather is a suit against the official’s office. As such, it is no

different from a suit against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,

71 (1989). As such, “neither a State nor its officials acting in their official capacities are

‘persons’ under § 1983.” Id. at 71. Nevertheless, a plaintiff may bring a § 1983 claim against a

state actor in his or her personal capacity. Hafer v. Melo, 502 U.S. 21, 25 (1991). “Personal-

capacity suits . . . seek to impose individual liability upon a government officer for actions taken

under color of state law.” Id. As the Supreme Court has explained:

Will itself makes clear that the distinction between official-capacity

suits and personal-capacity suits is more than a mere pleading

device. State officers sued for damages in their official capacity are

not “persons” for purposes of the suit because they assume the

identity of the government that employs them. By contrast, officers

sued in their personal capacity come to court as individuals. A

government official in the role of personal-capacity defendant thus

fits comfortably within the statutory term “person.”

Id. at 27. “In determining whether [a plaintiff has sued an official] in her personal capacity,

official capacity, or both, [courts] ... look to the complaints and the course of proceedings.”

Melo, 912 F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991) (internal citations and

quotations omitted). In addition, although a state actor acting in his or her official capacity

cannot be sued for money damages under § 1983, an exception to that general rule permits a

plaintiff to seek injunctive relief against state actors in their official capacities. See Will, 491 U.S.

at 92.

Here, Plaintiff has not sued the State of New Jersey or the OPD, and his Complaint does

not specifically allege any official capacity claims for damages. Indeed, the Demand for Relief

asks for damages against Defendants in their individual capacities. See Complaint at 10. Because

Plaintiff may not proceed against Defendants in their official capacities for damages, the Court

will grant the motion to dismiss the § 1983 and NJCRA damages claims against Defendants in

their official capacities only.2 To be clear, the damages claims against Defendants in their

personal capacities, as well as the official capacity claims for injunctive relief, are not subject to

dismissal under Will.

The Court turns next to Defendants’ arguments that they are entitled to absolute

immunity as public defenders. As a general rule, “public defenders and court-appointed counsel

acting within the scope of their professional duties are absolutely immune from civil liability”

under 42 U.S.C. § 1983. Walker v. Pennsylvania, 580 F. App’x 75, 78 (3d Cir. 2014)(quoting

Black v. Bayer, 672 F.2d 309, 320 (3d Cir. 1982) abrograted on other grounds by D.R. v. Middle

Bucks Area Voc. Tech. Sch., 972 F.2d 1364, 1368 n.7 (3d Cir. 1992)). This immunity extends to

defense attorneys employed by a state government, such as public defenders, because defense

counsel in a criminal proceeding “does not act under color of state law when performing a

lawyer’s traditional functions.” Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981). New Jersey

courts have interpreted the NJCRA as incorporating all of the immunities, defenses, and

limitations of § 1983. See, e.g., Brown v. State, 230 N.J. 84, 97-99 (2017).

Defendants contend that they were performing a lawyer’s traditional functions and/or

were within the scope of their professional duties when they refused to withdraw from Plaintiff’s

case until he paid them for prior costs. From the outset, the decisions cited by Defendants

2 The NCJRA is “intended to provide New Jersey citizens with a state analogue to Section [ ]

1983 actions.” Surina v. S. River Bd. of Educ., No. 17-2173, 2018 WL 3617970, at *11 (D.N.J.

July 30, 2018). For this reason, the Court’s analysis regarding Section 1983 applies with equal

force to Dalal’s claims under the NJCRA

involve plaintiffs who sought to bring ineffective assistance claims against their defense

attorneys. See Walker, 580 F. App’x. at 77 (explaining that plaintiff alleged that his defense

counsel provided ineffective assistance); Black, 672 F.2d at 313 (explaining that plaintiff alleged

incompetency of representation and conspiracy with the prosecutor to suppress evidence of

plaintiff’s innocence).

The plaintiff in Polk Cty. v. Dodson also asserted claims of ineffective assistance against

his public defender in connection with her decision to withdraw from his case, and the Supreme

Court held that a public defender did not act under color of state law when the public defender

moved to withdraw as appellate counsel on ground that claims were legally frivolous. 454 U.S. at

324. Pursuant to this precedent, it appears that a criminal defense attorney would also be entitled

to absolute immunity if he or she refused to withdraw to protect the client’s legal interests, the

integrity of the court, and/or the legal system, or was required to do so by the Rules of

Professional Conduct.

Here, however, Plaintiff has alleged that Defendants refused to withdraw from

representing him until Plaintiff paid OPD for legal costs even though they knew Plaintiff was

indigent and did not routinely seek repayment from indigent Defendants. Furthermore, the

Defendants’ refusal to withdraw prevented Plaintiff’s retained counsel from representing him in

his appeal and delayed the appeal. It is questionable that this alleged conduct encompasses a

lawyer’s traditional functions or would be within the scope of his or her professional duties.

The motion to dismiss also largely ignores the central legal issue of whether the

misconduct alleged falls within an exception to the general rule of absolute immunity. In Polk

Cty, the Supreme Court rejected the argument that a public defender is a state actor merely

because he or she is an employee of the state. Id. at 319–22. The Court specifically noted,

however, that “a public defender [acts] under color of state law while performing certain

administrative and possibly investigative functions.” Polk, 454 U.S. at 325. Defendants cite to no

decisions in the Third Circuit or elsewhere affording absolute immunity to a defense attorney or

public defender who refused to withdraw from a representation in order to obtain financial

reimbursement.

Nor do Defendants sufficiently address and distinguish decisions applying the

administrative and/or policy-based exceptions to absolute immunity. See e.g., Powers v.

Hamilton County Public Defender Com’n, 501 F.3d 592, 612 (6th Cir. 2007) (finding that public

defender’s purported policy of failing to seek indigency hearings on behalf of its clients falls

within the “administrative” exception alluded to in Polk); Miranda v. Clark Cnty., Nev., 319 F.3d

465, 469 (9th Cir. 2003) (en banc) (county public defender fell within administrative action

exception where he was “acting solely as the administrative head of the agency” and was

“responsible for allocating the office’s finite resources”). In their reply, Defendants contend that

these decisions are unpersuasive because Plaintiff makes no allegations of any systemic failures

of the OPD, but they do not provide authority for the proposition that systemic failures alone

qualify for the administrative action exception. Defendants, not Plaintiff, “bear[] the burden of

showing that no claim has been presented,” Hedges, 404 F.3d at 750, and the Court is

unconvinced that Defendants are entitled to absolute immunity at this stage of the proceedings.

Finally, the Court is also unconvinced by Defendants’ arguments that their conduct is

justified by statute and state court precedent.3 Defendants note that under state law, a criminal

3 The decisions cited by Defendants appear to support Plaintiff’s right to have the OPD pay for

the costs of representation so long as he is indigent. See State v. Arenas, 126 N.J. 504, 507=

(1991) (holding that the Public Defender had to pay the costs of trial transcripts for an indigent

defendant represented by private counsel); In re Kauffman, 126 N.J. 499, 503 (1991) (holding

that the Public Defender is required to pay for an expert to challenge Avenel report); In re

defendant must be indigent in order to receive state-funded services. In re Kauffman, 126 N.J.

499, 502 (1991). Defendants emphasize that the OPD has “the right to review and determine

whether defendant is indigent.” Id. Pursuant to state procedures, when a criminal defendant who

is represented by outside counsel applies for funds, the criminal defendant “should . . . include a

copy of the written retainer agreement” with outside counsel. Matter of Cannady, 126 N.J. 486,

494 (N.J. 1991). The Public Defender Act also permits OPD to seek reimbursement for costs of

services as follows:

In all cases where it appears that the defendant has or

reasonably expects to have means to meet some part, though not

all, of the cost of the services rendered to him he shall be required

to reimburse the office, either by a single payment or in

installments, in such amounts as he can reasonably be expected to

pay; but no default or failure in the making of any such payment

shall in any wise affect or reduce the rendering of the services to

him.

N.J.S.A. 2A:158A-16. This provision notes that a defendant’s ability to pay would have no effect

on the rendering of services. See Calhoun v. Young, No. 07-3691, 2007 WL 2462621, at *1 fn1

(D.N.J. Aug. 27, 2007) (explaining same).

Defendants then rely on facts that are outside the Complaint, including facts that

contradict the allegations in the Complaint, to justify their decisions to seek reimbursement

before withdrawing from the representation:

State Defendants purchased transcripts from Plaintiff’s trial to

capably present Plaintiff’s appeal. While State Defendants were

preparing, Plaintiff obtained private counsel. Once State

Defendants became aware Plaintiff obtained Mr. Zegas they

requested that Mr. Zegas send the retainer agreement in order to

determine appropriate reimbursement for the cost of Plaintiff's

transcripts. Noteworthy is Mr. Zegas adamantly refused to provide

the retainer agreement, delaying the process.

Cannady, 126 N.J. 486, 498 (1991)(holding that Public Defender is required to provide for the

cost for an expert to support battered women's syndrome defense)

State’s Brief at 2. Plaintiff alleges in the Complaint that OPM twice determined that Plaintiff was

indigent and that Defendants nevertheless refused to assign an attorney for his appeal and then

refused to withdraw from the representation until Plaintiff reimbursed OPM. Defendants’

contrary version of the facts would be appropriate on a summary judgment motion, if properly

supported by evidence, but is not properly considered here. On a Rule 12(b)(6) motion, the Court

is confined to the allegations of the complaint, which are presumed to be true. The Court may

also consider documents relied upon in, incorporated by reference in, or integral to, the

complaint. See In Re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Defendants additional factual allegations do not meet these requirements. As such, the Court

declines to consider or credit Defendants’ version of the facts.

For these reasons, the Court denies without prejudice the motion to dismiss the NJCRA

and § 1983 claims against Defendants in their personal capacities on the basis of absolute

immunity.4

IV. CONCLUSION

For the reasons explained in this Memorandum Opinion, the motion to dismiss the § 1983

and NJCRA claims is granted as to the claims for damages against Defendants in their official

capacities only. The motion to dismiss is otherwise denied without prejudice. An appropriate

Order follows.

4 In addition, Defendants attempt to raise qualified immunity for the first time in their reply brief,

but the Court declines to consider this issue. See Oberwager v. McKechnie Ltd., 351 F. App’x.

708, 711 (3d Cir. 2009) (“It is, of course, inappropriate to raise an argument for the first time in a

Reply brief.”).

10/22/21

Hon. Madeline Cox Arleo, District Judge

United States District Court