GOFF-COHEN v. COHEN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TAMMY GOFF-COHEN,

Plaintiil, Civil Action No. 20-15688 (MAS) (DBA)

OPINION

SUSAN UNGER COHEN, et al.,

Defendants.

SHIPP, District Judge

This matter comes before the Court on the Court’s sua sponte screening of Plaintiff Tammy

Goff-Cohen’s amended complaint (ECF No. 5) in this prisoner civil rights matter. As Plaintiff has

previously been granted in forma pauperis status in this matter (ECF No. 4), this Court is required

to screen her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismiss any claim which is

frivolous, malicious, fails to state a claim for relief, or seeks relief from an immune defendant. For

the reasons set forth below, Plaintiff’s amended complaint shall be dismissed without prejudice in

its entirety.

L BACKGROUND

Plaintiff is a state criminal detainee currently confined in the Monmouth County

Correctional Institution. (ECF No. 5 at 2-3.) Her current complaint arises out of events related to

her divorce and child custody matters, which also appear to be in some way related to her current

detention. (/d. at 3-8.) In March 2019, while Plaintiff was in divorce proceedings with her

husband, Erik Neal Cohen, her mother-in-law, Susan Unger Cohen, who is apparently the mayor

of the town in which they live, allegedly “filed a false police report’ against Plaintiff in order to

secure a restraining order against her. (Ud. at 6.) This led to proceedings before Judge Angela

Dalton, a Monmouth County superior court judge who was friends with Susan Cohen, who

eventually signed a restraining order in October 2019 which led to Plaintiff being separated from

the child she shares with Erik Cohen. (/d. at 5-8.) Susan Cohen also filed for a restraining order

in municipal court, which was granted by another acquaintance of hers, Judge James M. Newman.

at 5.) Plaintiff alleges that this order also in some way limited her free speech and child

custody rights. (/d.) Plaintiff does not clearly spell out the nature of either restraining order.

Plaintiff also seeks to raise a claim against Sylvia Brietowich, a private attorney. (/d. at 5.)

Ms. Brietowich was apparently hired by Plaintiff’ husband, and “stole a class action lawsuit from”

Plaintiff, apparently out of loyalty or in service to Plaintiff's husband. (/d.) Although Plaintiff

asserts that Ms. Brietowich was acting as her attorney, she also states that Judge Dalton clarified

that Ms. Brietowich “worked for Erik” and not for Plaintiff. (/d.) It is thus not clear who Ms.

Brietowich actually represented, or what role she actually had.

Ultimately, Plaintiff alleges that all of these issues and proceedings are a result of her

husband and mother-in-law “bribing, colluding, [and] conspiring” with their friends to have her

arrested and removed from her child’s life. (/d. at 6.)

Il. LEGAL STANDARD

Because Plaintiff has been granted in forma pauperis status, this Court is required to screen

her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to the statute, this Court must sua

sponte dismiss any claim that is frivolous, 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. Id. “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) (citing Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is required to accept as true all factual allegations in the complaint and draw all

reasonable inferences from those allegations in the light most favorable to the plaintiff, see Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008), but need not accept as true legal

conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). A

complaint need not contain “detailed factual allegations” to survive a motion to dismiss, but must

contain “more than an unadomed, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

Igbal, 556 U.S. 662, 678 (2009). A complaint “that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do,’” and a complaint will not “suffice” if it

provides only “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Jd. (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “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.” Jd. (quoting Twombly, 550 U.S. at 556). A

complaint that provides facts “merely consistent with” the defendant’s liability “stops short of the

line between possibility and plausibility” and will not survive review under Rule 12(b)(6). Id.

(quoting Twombly, 555 U.S. at 557). While pro se pleadings are to be liberally construed in

conducting such an analysis, pro se litigants must still “allege sufficient facts in their complaints

to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

Iii. DISCUSSION

In her complaint, Plaintiff wishes to raise federal civil rights claims pursuant to 42 U.S.C.

§ 1983 against a number of individuals including her husband, who appears to be a private citizen,

her mother-in-law, who is a town mayor but whose actions in the complaint relate solely to her

personal relationship with Plaintiff, a private attorney, and two state judges. “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 color of

state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). In determining whether an

individual acts under color of state law, the court must determine whether the defendants “have

exercised power possessed by virtue of state law and made possible only because the wrongdoer

is clothed with the authority of state law.” Zenquis v. City of Philadelphia, 861 F. Supp. 2d 522,

528 (E.D, Pa. 2012) (quoting Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)),

Private citizens, or those acting only in a private capacity are generally not liable under the statute.

Id. Private parties can be held liable, however, where they are involved in a conspiracy with state

officials who improperly use state authority to accomplish the conspiracy’s goals by depriving a

plaintiff of some protected right. /d. In order to plead a conspiracy, however, a plaintiff may not

simply assert that a conspiracy existed. A plaintiff must actually plead facts indicating agreement

by the parties to form such a conspiracy and concerted action by the alleged conspirators. Id. at

528-29; see also Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008); Brown v.

Deparlos, 492 F. App’x 211, 215 (3d Cir. 2012) (“the bare allegation of an agreement is

insufficient to sustain a conspiracy claim”); Desposito v. New Jersey, No. 14-1641, 2015 WL

2131073, at *14 (D.N.J. May 5, 2015) (showing that two parties’ actions had the same result

insufficient to show conspiracy as conspiracy requires showing of actual agreement and concerted

action).

In her complaint, Plaintiff fails to plead any facts showing an actual meeting of the minds,

agreement, or concerted action. As such, she may not rely on her mere assertion of a conspiracy

to connect Defendants to her claims. As all of the actions attributed to Defendant Susan Unger

Cohen are related to her actions (such as filing police reports) as a private citizen, and as both her

husband Erik Cohen and their private attorney do not appear to have been acting under color of

state law at any time during the complaint’s timeline, she may not raise a § 1983 claim against any

of these three Defendants. Plaintiff’s § 1983 claims against the Cohens and Ms. Brietowich are

therefore dismissed without prejudice for failure to state a claim for relief.

The two remaining Defendants, Judges Dalton and Newman, are connected to Plaintiff’s

claims solely by acts they took in their official capacities as state and municipal judges. Judges,

however, are absolutely immune from suit under § 1983 for claims related to their judicial duties

save for when those actions are taken in the clear absence of any jurisdiction. See, e.g., Figueroa

v. Blackburn, 208 F.3d 435, 440-41 □□□ Cir. 2000) (‘judges . . . are not liable to civil actions for

their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have

been done maliciously or corruptly”). As Plaintiff pleads no facts indicating a complete lack of

jurisdiction, and all the complained of acts relate to Defendants’ actions as state or municipal

judges, they fully appear to be immune from suit in this matter. Plaintiff's claims against them are

therefore also dismissed at this time.

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IV. CONCLUSION

For the reasons expressed above, Plaintiff's amended complaint (ECF No. 5) is

DISMISSED WITHOUT PREJUDICE in its entirety. An order consistent with this Opinion

will be entered.

s/ Michael A. Shipp

MICHAEL A. SHIPP

UNITED STATES DISTRICT JUDGE

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