                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2007

Bethea v. Trump
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4019




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"Bethea v. Trump" (2007). 2007 Decisions. Paper 1463.
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CLD–151                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   NO. 06-4019
                                ________________

                                DEREK BETHEA,

                                        Appellant

                                          v.

               MR. DONALD TRUMP; MS. ANNA DELLAGATA;
                MS. LILLY CORNMAN; JOHANNA REILLY,
                   sued jointly and in their individual capacities
                  ____________________________________

                  On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civ. No. 06-cv-01052)
                   District Judge: Honorable Jerome B. Simandle
                  _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 8, 2007

          Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                             (Filed March 15, 2007 )


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM
       Derek Bethea, a New Jersey state prisoner proceeding pro se, appeals from the

District Court’s dismissal of his complaint as frivolous pursuant to 28 U.S.C. §§

1915(e)(2) and 1915A. Because we agree with the District Court and conclude that this

appeal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B).

       Bethea’s complaint asserts that three employees of the Trump Plaza Atlantic City

Hotel and Casino falsely testified at a grand jury proceeding and at his criminal trial that

he placed illegal wagers at the Casino’s roulette table on December 8, 1998. Bethea

alleges that the Casino employees’ purported false testimony led to his conviction for

swindling and cheating, and that they thereby violated his civil rights. Bethea further

contends that the Casino employees’ testimony was perjured, and that defendant Donald

Trump is liable for gross negligence.

       Bethea is proceeding in forma pauperis, so we review this appeal to determine

whether “it lacks an arguable basis in law or in fact” and thus should be dismissed

pursuant to § 1915(e)(2)(B).1 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In short,

after conducting an independent review, we agree with the District Court’s reasoning for

dismissing Bethea’s complaint. He cannot maintain an action under 42 U.S.C. § 1983 for

violation of his civil rights against the Casino employees because they did not act under



   1
       Although the District Court dismissed Bethea’s complaint without prejudice, we
have jurisdiction pursuant to 28 U.S.C. § 1291 because the dismissal was pursuant to §
1915(e). See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995); Borelli v. City
of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976). Our review is plenary. Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003).

                                               2
color of state law when they testified before the grand jury or at the criminal trial. See

Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983) (“It is beyond question that, when a

private party gives testimony in open court in a criminal trial, that act is not performed

‘under color of law’” as is required for recovery under § 1983.). Additionally, as the

District Court explained, the remaining claims for perjury and gross negligence arise

under state law, and because Bethea’s federal claims are being dismissed at an early stage

of litigation, “the state claims should be dismissed as well” pursuant to 28 U.S.C. §

1367(c). Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). See

also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

       For the foregoing reasons, we will dismiss this appeal pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). As a result of our disposition, Bethea’s motion for appointment of

counsel is denied as moot. Bethea’s motion for state court transcripts is denied because

the transcripts are not relevant to our current inquiry.
