HAROLD v. BAGLEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABE HAROLD, III, No. 21-cv-0501 (NLH) (AMD)

Plaintiff,

v. OPINION

POLICE OFFICER DANIEL BAGLEY,

et al.,

Defendants.

APPEARANCE:

Abe Harold, III

950275B

Southern State Correctional Facility

P.O. Box 150

Delmont, NJ 08314

Plaintiff Pro se

James R. Birchmeier, Esq.

Birchmeier & Powell, LLC

1891 State Highway 50

PO Box 582

Tuckahoe, NJ 08250-0582

Attorneys for Cumberland County Jail1

1 Counsel for Cumberland County jail entered an appearance to

address the Court’s Order to Show Cause regarding the jail’s

failure to submit payments required under 28 U.S.C. § 1915. ECF

Nos. 9-11. That issue has since been resolved, and Plaintiff

makes no allegations against the Jail in this action.

Accordingly, the Court will instruct the Clerk to dismiss the

Jail from this action.

HILLMAN, District Judge

Plaintiff Abe Harold, a prisoner presently confined in

Southern State Correctional Facility, moves to amend his

complaint. See ECF No. 12. The Court will grant the motion to

amend and review the amended complaint pursuant to 28 U.S.C. §

1915. For the reasons stated below, the amended complaint will

be dismissed without prejudice. The Court will grant Plaintiff

leave to amend for a second time.

I. BACKGROUND

Plaintiff’s original complaint was filed on January 11,

2021. ECF No. 1. The Court administratively terminated the

complaint as Plaintiff did not pay the filing fee or submit an

in forma pauperis application. ECF no. 3. Plaintiff later

submitted an in forma pauperis application, ECF No. 4, which the

Court granted upon reopening the matter, ECF No. 5.

Plaintiff alleges that Defendant Daniel Bagley, a Bridgeton

police officer, “failed to do arrest procedures and filed a

complaint warrant maliciously.” ECF No. 1 at 5. He states

Defendant Bagley “generated a complaint warrant with

insufficient evidence to establish probable cause mainly by not

identifying me with certainty and the Affidavit of Probable

Cause lacking every element of the offense to support the statue

[sic], doing so with malicious intent.” Id. at 10. In a

supplement, Plaintiff alleges Defendant Bagley “bypass[ed]

policies and customs” in arresting Plaintiff and “harassed [him]

on numerous occasions by unlawfully detaining [Plaintiff] to

inquire about other police actively that [he] had no knowledge

of or involvement.” ECF No. 6 at 1. Plaintiff also alleges

Defendant Bagley committed perjury in his police report. ECF

No. 7 at 3.

Plaintiff also seeks to bring claims against several

Cumberland County prosecutors, his criminal defense attorneys,

and the judge overseeing his criminal case. ECF No. 12.

II. STANDARD OF REVIEW

Section 1915(e)(2) requires a court to review complaints

prior to service in cases in which a plaintiff is proceeding in

forma pauperis. The Court must 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) because Plaintiff is proceeding in forma pauperis.

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. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘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.’” Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

III. DISCUSSION

A party has the right to amend his or her “pleading once as

a matter of course” 21 days after service of the pleading or 21

days after a motion under Rule 12 is filed, whichever is

earlier. Fed. R. Civ. P. 15(a)(1). Plaintiff filed a request

to amend his complaint before the Court screened the original

complaint or ordered service; therefore, Plaintiff may amend his

complaint a matter of course. Plaintiff incorporates the

original complaint, so the Court will consider both documents to

be the “amended complaint” for purposes of its § 1915 review.

A. Police Defendants

Plaintiff alleges that Defendant Bagley maliciously filed a

complaint warrant against him by submitting “an insufficient

statement of probable cause . . . without being certain I was

the accused.” ECF No. 1 at 8. He vaguely states that Defendant

Bagley failed “to make an arrest, failed to inform me of the

offense charged and of the fact that a warrant had been issued

he failed to do arrest identification procedures, he failed, to

execute the warrant and make promt [sic] return to the court and

failed to identify me with reasonable certainty.” Id. at 10.

Plaintiff further states Defendant Bagley never provided

Plaintiff with a copy of the complaint despite Defendant Bagley

stating in his police report that he had done so. Id.; ECF No.

7 at 3. He also alleges a violation of his Fourth Amendment

right against unreasonable searches and seizures based on an

encounter with Defendant Bagley and another officer on the

street. ECF No. 7 at 3.

Plaintiff has not stated a claim for false arrest. He

acknowledges his arrest was done pursuant to a warrant, and

“[w]here the alleged Fourth Amendment violation involves a

search or seizure pursuant to a warrant, the fact that a neutral

magistrate has issued a warrant is the clearest indication that

the officers acted in an objectively reasonable manner or, as we

have sometimes put it, in ‘objective good faith.’”

Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting

United States v. Leon, 468 U.S. 897, 922–23 (1984)). An

exception exists when “the warrant was ‘based on an affidavit so

lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.’” Id. at 547

(quoting Leon, 468 U.S. at 923). “[T]he threshold for

establishing this exception is a high one[.]” Id.

Plaintiff has not met the high standard required to

overcome the presumption of reasonableness because he has not

provided any information about the affidavit other than his

claim that it contained “insufficient evidence,” failed to

“identify[] [him] with certainty” and “lack[ed] every element of

the offense . . . .” “[T]he tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). The Court cannot reasonably infer Defendant Bagley

submitted an obviously deficient affidavit of probable cause

without more facts.

Plaintiff also claims that Defendant Bagley’s failed to

provide him with the complaint “[h]owever, under neither federal

statutory law, nor under Constitutional law, is [defendant]

provided the right to be shown an arrest warrant at the time of

arrest.” Lewis v. Nelson, 113 F.3d 1246 (Table), 1997 WL

291177, at *3 (10th Cir. 1997). See also United States v. Cox,

553 F. App’x 123, 128 (3d Cir. 2014)(declining to decide whether

failure to show warrant during arrest justifies dismissal of

criminal complaint, but stating standard would require a minimum

showing of “prejudice” or “intentional and deliberate

disregard”); United States v. Turcotte, 558 F.2d 893, 896 (8th

Cir. 1977) (“We find no merit to appellant’s contention that his

arrest was unlawful due to the failure of the arresting officer

to serve him with a copy of the arrest warrant.”); Richardson v.

Kimbrough, No. 16-5931, 2017 WL 6311511, at *2 (D.N.J. Dec. 8,

2017) (“The Court’s research revealed no support for Ms.

Richardson’s theory that an improper arrest claim under § 1983

may be based on the mere failure to show the arrest warrant at

the time of execution.”).

Plaintiff also has not stated a malicious prosecution claim

against Defendant Bagley. The Supreme Court recently defined

“the elements of the malicious prosecution tort as follows: (i)

the suit or proceeding was ‘instituted without any probable

cause’; (ii) the ‘motive in instituting’ the suit ‘was

malicious,’ which was often defined in this context as without

probable cause and for a purpose other than bringing the

defendant to justice; and (iii) the prosecution ‘terminated in

the acquittal or discharge of the accused.’” Thompson v. Clark,

__ S. Ct. ____, 2022 WL 994329, at *4 (U.S. Apr. 4, 2022)

(quoting T. Cooley, Law of Torts 181 (1880)). For the final

element, “[a] plaintiff need only show that the criminal

prosecution ended without a conviction.” Id. at *7. Plaintiff

has not stated any facts indicating that the criminal

proceedings against him ended without a conviction; therefore,

he has failed to state a malicious prosecution claim.

To the extent Plaintiff asserts Defendant Bagley perjured

himself when he claimed to have sent a copy of the complaint to

Plaintiff, there is no standalone § 1983 claim for perjury. See

Rosado v. Dugan, No. 19-5068, 2022 WL 103192, at *3 (E.D. Pa.

Jan. 11, 2022) (citing Kulwicki v. Dawson, 969 F.2d 1454, 1467,

n.16 (3d Cir. 1992)). Alleged perjury may be relevant in a

probable cause or malicious intent analysis, but the Court will

dismiss the separate perjury claim.

Finally, Plaintiff alleges Defendant Bagley and Defendant

Officer John Doe stopped him on the street “without probable

cause or an arrest warrant” and “detained [him] for

[approximately] 45 minutes” and “interrogated me without reading

me my rights and trying to forcefully make me get inside their

police vehicle . . . .” ECF No. 6 at 4. Plaintiff has not

stated a plausible unreasonable seizure claim based on these

“unadorned, the-defendant-unlawfully-harmed-me accusation[s].”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court

assumes for screening purposes only that the stop qualifies as a

“seizure” within the meaning of the Fourth Amendment, but there

are not enough facts for the Court to reasonably infer the

seizure was unreasonable under the circumstances.2

2 “To establish an unlawful seizure under the Fourth Amendment,

a plaintiff must show that the defendant’s actions: (1)

constituted a ‘seizure’ within the meaning of the Fourth

Amendment, and (2) that seizure was ‘unreasonable’ in light of

Plaintiff’s statements that the stop lacked probable cause

and he was “interrogated” are legal conclusions that the Court

need not accept as true for screening purposes. See Connelly v.

Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016) (noting that

an “allegation is conclusory and unworthy of weight in analyzing

the sufficiency of a complaint [when] it embodies a legal

point”). The Court accepts the allegation that the officers

tried to get Plaintiff into their vehicle, but that fact by

itself is not enough to state an unreasonable seizure claim.

“Where a complaint pleads facts that are ‘merely consistent

with’ a defendant’s liability, it ‘stops short of the line

between possibility and plausibility of “entitlement to

relief.”‘” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 557 (2007)). Plaintiff must provide

enough facts about the circumstances surrounding the stop before

the Court can reasonably infer that Defendants’ actions violated

the Fourth Amendment.

Plaintiff has also failed to state a claim against the

Bridgeton Police Department. ECF No. 6. The Bridgeton Police

Department is not a separate legal entity from the municipality,

and a plaintiff may sue a local government under § 1983 only for

the surrounding circumstances.” Houck v. Ferrari, 57 F. Supp.

3d 377, 388 (D.N.J. 2014) (citing Brower v. County of Inyo, 489

U.S. 593, 595–600 (1989)).

acts implementing an official policy, practice, or custom. See

Monell v. New York City Dep’t of Social Servs., 436 U.S. 658,

690-91 (1978). To plausibly plead Monell liability, a plaintiff

must identify the challenged policy or custom, attribute it to

the municipality itself, and show a causal link between

execution of the policy and the injury suffered. Harley v. City

of New Jersey City, No. 16-5135, 2017 WL 2774966, at *7–8

(D.N.J. June 27, 2017). Plaintiff does not claim Bridgeton

enacted policies that caused violations of his constitutional

rights, nor are there enough facts to reasonably infer Bridgeton

failed to supervise Defendant Bagley. The Court will dismiss

this claim without prejudice.

B. Prosecutor Defendants

Plaintiff also seeks to bring malicious prosecution claims

against Defendants Jasmine Ostrow, Meghan Pricefurfari, Holly

Fanelle, and Deirdre Macfeeters (collectively the “Prosecutor

Defendants”), who are assistant prosecutors with the Cumberland

County Prosecutor’s Office. ECF No. 1 at 5-6; ECF No. 12 at 4.

The Court will dismiss these claims with prejudice based on

prosecutorial immunity.

Plaintiff alleges the Prosecutor Defendants “chose to

persue [sic] prosecuting a defective complaint Warrant . . . .”

ECF No. 1 at 5-6. “The decision to initiate a prosecution is at

the core of a prosecutor’s judicial role.” Kulwicki v. Dawson,

969 F.2d 1454, 1463 (3d Cir. 1992) (citing Imbler v. Pachtman,

424 U.S. 409, 430-31 (1976)). See also Burns v. Reed, 500 U.S.

478, 486 (1991); Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir.

2020). “A prosecutor is absolutely immune when making this

decision, even where [she] acts without a good faith belief that

any wrongdoing has occurred.” Kulwicki, 969 F.2d at 1464.

The Prosecutor Defendants have absolute immunity from claims

arising from their decisions to begin a prosecution against

Plaintiff.3

Plaintiff also claims the Prosecutor Defendants failed to

provide him with discovery. ECF No. 12 at 2-4. However, “[t]he

disclosure of evidence during discovery is ‘intimately

associated with the judicial phase of the criminal process.’”

Kamienski v. Ford, 844 F. App’x 520, 523 (3d Cir. 2021) (citing

Fogle, 957 F.3d at 159-60). The Court will dismiss these claims

with prejudice as well. 28 U.S.C. § 1915(e)(2)(B)(iii).

C. Defense Attorney Defendants

Plaintiff also seeks relief from defense attorneys Emily

Bell and Michael Ortiz. ECF No. 12 at 3-4. Plaintiff alleges

that Defendant Ortiz, a Cumberland County Public Defender,

3 Even if absolute immunity did not apply, Plaintiff has not

satisfied the requirements for a malicious prosecution claim

because he has not alleged that his criminal proceedings ended

without a conviction. Thompson v. Clark, __ S. Ct. ____, 2022

WL 994329, at *7 (U.S. Apr. 4, 2022).

“failed to keep [Plaintiff] informed about the status of the

legal proceedings” and “did not abide by [Plaintiff’s] decisions

concerning the objective of representation.” Id. at 4. To

state a claim for relief under § 1983, a plaintiff must allege,

first, the violation of a right secured by the Constitution or

laws of the United States and, second, that the alleged

deprivation was committed or caused by a person acting under

color of state law. See Malleus v. George, 641 F.3d 560, 563

(3d Cir. 2011). The Court will dismiss the claims against

Defendant Ortiz with prejudice because “public defenders are not

state actors under § 1983 when they ‘perform[] a lawyer’s

traditional functions as counsel to a defendant in a criminal

proceeding.’” Rambert v. Dist. Att’y Philadelphia, No. 20-1593,

2022 WL 205416, at *1 (3d Cir. Jan. 24, 2022) (quoting Polk

County v. Dodson, 454 U.S. 312, 325 (1981)) (alteration in

original). Therefore, Plaintiff has failed to state a claim

against Defendant Ortiz under § 1983.

The Court will also dismiss the § 1983 claims against

Defendant Bell with prejudice. ECF No. 12 at 3. Plaintiff

alleges Defendant Bell “withdrew from her representation as my

attorney incorrectly”; “did not keep me informed about the

status of the legal proceedings”; “did not abide by my

decisions”; and “made false statement to the Judge and me.” Id.

at 3-4. Defendant Bell is a private attorney whom Plaintiff

retained to perform legal services. See id. at 12 (asking the

Court to order Defendant Bell to return the retainer). There

are no facts that would support a reasonable inference that

Defendant Bell ever acted on behalf of the State during her

representation of Plaintiff. Therefore, Plaintiff’s claims

against her must fail as Plaintiff has not alleged all the

elements of a claim under § 1983.4

D. Judge Malestein

Plaintiff also seeks to bring claims against Defendant

Judge Malestein for due process violations. ECF No. 12. “It is

a well-settled principle of law that judges are generally

‘immune from a suit for money damages.’” Figueroa v. Blackburn,

208 F.3d 435, 440 (3d Cir. 2000) (quoting Mireles v. Waco, 502

U.S. 9, 11 (1991)). “A judge will not be deprived of immunity

because the action he took was in error, was done maliciously,

or was in excess of his authority[.]” Stump v. Sparkman, 435

U.S. 349, 356 (1978). See also Gallas v. Supreme Court of Pa.,

211 F.3d 760, 769 (3d Cir. 2000) (“[I]mmunity will not be lost

4 The Court notes that ineffective assistance of counsel claims

of the kind Plaintiff alleges are generally not cognizable under

§ 1983 and would be more appropriately considered as part of

postconviction review or ethics complaint with the relevant

governing body. Although Plaintiff’s claims against his

attorneys are dismissed with prejudice for purposes of this

complaint and § 1983, the dismissal is without prejudice to his

right to raise ineffective assistance of counsel claims in any

postconviction review application, if necessary, that otherwise

complies with the relevant statutes.

merely because the judge’s action is ‘unfair’ or

controversial.”).

As a judge of the Cumberland County Superior Court,

Defendant Malestein is “absolutely immune from liability for his

judicial acts even if his exercise of authority is flawed by the

commission of grave procedural errors.” Stump, 435 U.S. at 359.

“[Judicial] immunity is overcome in only two sets of

circumstances.” Mireles, 502 U.S. at 11. “First, a judge is

not immune from liability for nonjudicial acts, i.e., actions

not taken in the judge’s judicial capacity.” Id. “Second, a

judge is not immune for actions, though judicial in nature,

taken in the complete absence of all jurisdiction.” Id. at 12.

Plaintiff alleges Defendant Malestein “forced” Plaintiff to

proceed pro se during arraignment; “initiated ex parte

communication”; “allowed counsel to excuse herself incorrectly”;

“gave an opinion in the action”; “testified as a character

witness”; “lent the prestige of office to advance the private

interests” of Defendant Bell; and “did not avoid all impropriety

and appearance of impropriety.” ECF No. 12 at 5.

Plaintiff’s allegations that Defendant Malestein “gave an

opinion in the action,” “testified as a character witness,” and

“lent the prestige of office to advance the private interests”

of Defendant Bell are based on Defendant Malestein permitting

Defendant Bell to withdraw from representing Plaintiff. Id. at

9. Plaintiff alleges Defendant Malestein allowed Defendant Bell

to “recuse herself incorrectly” claiming there was a “failure in

the line of communication” between her and Plaintiff. Id.

Plaintiff states he had “provable facts” disputing Defendant

Bell’s account, but Defendant Malestein “stated ‘From the way

you are acting there probably was a failure in the line of

communication.’” Id. at 10. Plaintiff alleges this was a

statement of opinion and character testimony that “lent the

prestige of office to advance the private interests” of

Defendant Bell.

Plaintiff alleges that Defendant Malestein initiated “ex

parte communication” after the arraignment. ECF No. 12 at 10.

Plaintiff states he requested discovery from Defendant Fanelle

and wrote to Defendant Malestein when he did not receive a

response. Id. at 18. Defendant Malestein forwarded Plaintiff’s

letter to Defendant Ortiz and copied Defendant Macfeeters and

Plaintiff on his letter to Defendant Ortiz. Id. at 19. “By

copy of this correspondence to the defendant, I am advising them

that it is inappropriate for defendant to communicate directly

with the Court in that it is an ex parte communication.” Id.

Defendant Malestein has absolute judicial immunity for

Plaintiff’s allegations. Conducting arraignments and ruling on

an attorney’s motion to withdraw are functions normally

performed by judges, qualifying as “judicial acts.” Stump, 435

U.S. at 362. Defendant Malestein’s letter to Defendant Ortiz

also falls within the scope of judicial acts because he was

forwarding a communication from Plaintiff, Defendant Ortiz’s

client, that had been sent to him in his capacity as the judge

presiding over Plaintiff’s criminal case. Id. (noting “whether

an act by a judge is a ‘judicial’ one relate[s] to the nature of

the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties,

i.e., whether they dealt with the judge in his judicial

capacity”). Even if this act was part of a judge’s

administrative duties to which absolute immunity would not

apply, Defendant Malestein would have qualified immunity because

sending Plaintiff’s defense counsel a letter Plaintiff wrote and

improperly sent Defendant Malestein is not a violation of

Plaintiff’s constitutional rights. The Court concludes

Defendant Malestein’s actions fall squarely within the judicial

function and within his jurisdiction as the presiding officer of

Plaintiff’s criminal trial. Accordingly, he is immune from

suit, and the Court will dismiss the claims with prejudice.

E. Leave to Amend

Generally, “plaintiffs who file complaints subject to

dismissal under [§ 1915] should receive leave to amend unless

amendment would be inequitable or futile.” Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). The Court will

grant leave to submit a proposed second amended complaint as it

is possible Plaintiff may be able to allege facts that would

cure the deficiencies in his claims against the police

defendants. The proposed second amended complaint will be

subject to this Court’s § 1915 review prior to service and may

not adopt or repeat claims that have been dismissed with

prejudice by the Court.5 Failure to submit a proposed second

amended complaint within the time set by the Court may result in

dismissal with prejudice.

IV. CONCLUSION

For the reasons stated above, the Court grants Plaintiff’s

motion to amend. ECF No. 12. The amended complaint will be

dismissed, and Plaintiff is granted leave to file a proposed

second amended complaint within 45 days of this Opinion and

Order.

An appropriate order follows.

Dated: April 12, 2022 __s/ Noel L. Hillman___

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

5 The Court further notes that dismissal of Plaintiff’s state

charges is not an available remedy under 42 U.S.C. § 1983 as

such relief is confined to habeas corpus actions under 28 U.S.C.

§ 2241 and § 2254.