SMITH v. BOROW

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARIAH SMITH,

Plaintiff,

Case No. 3:19-cv-08553-GC-TJB

v.

OPINION

PHILIP ALLAN BOROW, et al.,

Defendants.

CASTNER, U.S.D.J.

This matter comes before the Court upon Plaintiff Mariah Smith’s (“Plaintiff”) Second

Amended Complaint, filed on July 6, 2021. (ECF No. 16.) For the reasons explained below,

Plaintiff’s Second Amended Complaint shall be dismissed with prejudice.

BACKGROUND

On March 14, 2019, Plaintiff filed her Original Complaint and an Application to Proceed

In Forma Pauperis. (ECF No. 1.) Plaintiff named four defendants in the case: Philip Allan Borow

(“Borow”), Robert M. Adochio (“Adochio”), Marlina Papotto (“Papotto”), and W. Richard Veitch

(“Veitch”), (collectively, “Defendants”).

Plaintiff’s Original Complaint appears to assert civil rights claims against the above-named

Defendants for malicious prosecution. (Compl. at 2, ECF No. 1.) Plaintiff also appears to

challenge the legitimacy of an underlying criminal municipal court proceeding, asserts that she

was not permitted to testify on her own behalf, and challenges the conduct of her public defender.

(Id. at 2-4.) On September 10, 2020, Plaintiff’s Application to Proceed In Forma Pauperis was

granted by this Court. (ECF No. 5.)

While Plaintiff’s in forma pauperis application was granted, the Court dismissed her

Original Complaint, stating that it “fails to meet the standard set forth in Federal Rule of Civil

Procedure 8 because the allegations in the Complaint are confused and fail to identify events that

give rise to Smith’s claims.” (ECF No. 4 at 4.) Furthermore, Plaintiff’s Original Complaint did

not contain a short and plain statement that outlines the specific allegations against each Defendant.

(Id.)

Plaintiff then timely filed a First Amended Complaint. (ECF No. 6). The content of

Plaintiff’s First Amended Complaint is substantially similar to the Original Complaint, although

it added two additional parties. (See id.) Plaintiff’s First Amended Complaint was dismissed,

without prejudice, for the reasons set forth on the record. (ECF Nos. 14-15.) Plaintiff was given

sixty (60) days to cure the deficiencies of the First Amended Complaint. (Id.)

On July 6, 2021, Plaintiff filed her Second Amended Complaint, which is currently before

this Court. (ECF No. 16.)

LEGAL STANDARD

As noted in the September 10, 2020 decision granting Plaintiff’s in forma pauperis

application, the Court is required “to screen Smith’s Complaint pursuant to 28 U.S.C. §

1915(e)(2)(B).” (ECF No. 4 at 2-3.) “The legal standard for dismissing a complaint for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x

120, 122 (3d Cir. 2012).

When considering a Rule 12(b)(6) motion, a district court conducts a three-part analysis.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the

elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,

675). “Second, the court should identify allegations that, ‘because they are no more than

conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679).

The court must accept as true all well-pleaded factual allegations and construe the complaint in the

light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)

(citation omitted). Third, the court must determine whether the well-pleaded facts “plausibly give

rise to an entitlement for relief.” Malleus, 641 F.3d at 563 (quoting Iqbal, 556 U.S. at 679); see

also Fowler, 578 F.3d at 211. A complaint that does not demonstrate more than a “mere possibility

of misconduct” must be dismissed. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190

(3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Although courts construe pro se pleadings less

stringently than formal pleadings drafted by attorneys, pro se litigants are still required to “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).

Federal Rule of Civil Procedure 8 sets forth general rules of pleading, and requires (1) “a

short and plain statement of the grounds for the court’s jurisdiction,” (2) “a short and plain

statement of the claim showing that the pleader is entitled to relief,” and (3) allegations that are

“simple, concise, and direct.” Fed. R. Civ. P. 8(a)(1); 8(a)(2); 8(d).

DISCUSSION

The Court recognizes that it must liberally construe Plaintiff’s submission because she is

pro se. See Dluhos v. Strasberg, 321 F.3d 365, 373 (3d Cir. 2003) (“[W]e must liberally construe

the pro se litigant’s pleadings, and we will apply the applicable law, irrespective of whether he has

mentioned it by name.”) However, while this Court will construe the pleading “so as to do justice,”

this purported action, like Plaintiff’s Original and First Amended Complaints, is deficient. Fed.

R. Civ. P. 8(e).

The crux of Plaintiff’s claim appears to be a malicious prosecution claim in connection

with her municipal court case. (See ECF No. 16.) Plaintiff brings these claims against Judge

Borow, “Judicial Officer” Papotto, her attorney Veitch, and the Prosecutor Adachio. In what

appears to be an allegation against Judge Borow, Plaintiff asserts that she was not permitted to

testify on her own behalf. (Id. at 1.) However, Plaintiff also asserts that she suffered a mouth

injury and had a fever of 100 degrees and was ordered by a doctor to stay home. (Id. at 1, 2, 6.)

Then, Plaintiff’s Second Amended Complaint asserts a number of allegations related to the

conduct of several non-parties to this Complaint.

Despite Plaintiff’s assertions, 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)). Further, “immunity will not be lost merely

because the judge’s action is ‘unfair’ or controversial.” Gallas v. Supreme Court of Pa., 211 F.3d

760, 769 (3d Cir. 2000). There are only two ways for judicial immunity to be overcome. “First,

a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s

judicial capacity . . . . Second, a judge is not immune for actions, though judicial in nature, taken

in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).

Here, while Plaintiff may disagree with Judge Borow’s alleged decision to allow or not

allow certain testimony, such conduct certainly qualifies as a “judicial act,” to which judicial

immunity applies. Stump v. Sparkman, 435 U.S. 349, 362 (1978). See Johnson v. Bilotta, No. 16-

8879, 2018 U.S. Dist. LEXIS 11126, at *9 (D.N.J. Jan. 23, 2018) (finding judicial immunity when

Plaintiff alleges that expert testimony was erroneously permitted to proceed and noting that

“Plaintiff has not relayed any facts that demonstrate [the judge] performed non-judicial acts”).

Similarly, “[a] prosecuting attorney in the State of New Jersey ‘who act[s] within the scope

of his duties in initiating and pursuing a criminal prosecution’ is absolutely immune from

suit.” Oliveira v. Borough of N. Arlington, No. 15-7717, 2018 U.S. Dist. LEXIS 1117, at *7

(D.N.J. Jan. 3, 2018) (quoting Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (alteration in

original). See LeBlanc v. Stedman, 483 F. App’x 666, 669 (3d Cir. 2012). Public defenders are

likewise absolutely immune from suit for actions taken within the scope of their professional duties

as counsel. See Carter v. Kane, 717 F. App’x 105, 108 (3d Cir. 2017); see also Polk Cnty. V.

Dodson, 454 U.S. 312, 318 (1981).

Plaintiff asserts that her attorney “allowed Sheila,” a non-party, to “lie on [Plaintiff],”

presumably while testifying in court. (ECF No. 16 at 5.) And, Plaintiff’s claims against the

prosecutor, Adochio, seem to be limited to vague assertions that she was “not allowed … to discuss

the charges” with him. (Id. at 6.) None of the assertions made against either her attorney or the

prosecutor identifies conduct that falls outside the scope of their legal duties. As a result, both the

prosecutor and Plaintiff’s attorney are immune from suit.

Finally, “[q]uasi-judicial immunity is given only to public employees who perform judge-

like functions and attaches when a public official’s role is functionally comparable to that of a

judge.” Ingram v. Twp. of Deptford, 858 F. Supp. 2d 386, 390 (D.N.J. 2012).” Plaintiff brings

claims against Marlina Papotto, identified as a judicial officer, and alleges that she “allowed …

false harassment” charges to go through. (ECF No. 16 at 4.) However, Papotto, properly identified

as a Deputy Court Administrator, is immune from suit as well.1 Plaintiff alleges that Papotto

1 A court may, on its own, take judicial notice of “a fact that is not subject to reasonable dispute

because it … can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b). According to public record, Marlina Papotto is

a Deputy Court Administrator for the City of New Brunswick Municipal Court.

permitted false harassment charges” to go forward in her capacity as a Deputy Court

Administrator. “When judicial immunity is extended to officials other than judges, it is because

their judgments are ‘functionally comparable’ to those of judges—that is because they, too,

‘exercise a discretionary judgment’ as part of their function.” Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 436 (1993). Here, Papotto’s actions are “functionally comparable” to that of a judge,

which makes her immune from suit for that action. See Britton v. City of Atl., No. 17-1986, 2018

U.S. Dist. LEXIS 176382, at *6 (D.N.J. Oct. 11, 2018).

The remainder of Plaintiff’s Second Amended Complaint does not clearly identify a claim

upon which relief can be granted. In fact, much of Plaintiff’s Second Amended Complaint focuses

on allegations from a previously litigated state court action involving a harassment suit with non-

party, Angela Reid.

Even though, “[s]pecific facts are not necessary,” Plaintiff’s Complaint still must “give the

defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While construing the Complaint in the light

most favorable to Plaintiff, the Second Amended Complaint fails to comply with Rule 8 in that it

does not contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Because Plaintiff fails to meet the requirements of Rule 8, she has

not stated a “claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

For the reasons described above, the Court must dismiss Plaintiff’s Second Amended

Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) with prejudice.

CONCLUSION

For the reasons set forth above, Plaintiff’s Second Amended Complaint is DISMISSED

WITH PREJUDICE. An appropriate Order will follow.