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


3-5-2007

Ray v. State of NJ
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1521




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"Ray v. State of NJ" (2007). 2007 Decisions. Paper 1530.
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DLD-117                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 06-1521
                                ________________

                                MICHAEL R. RAY,

                                              Appellant

                                         v.

STATE OF NEW JERSEY; COUNTY OF ATLANTIC; SUPERIOR COURT OF NEW
  JERSEY; PETER C. HARVEY, Attorney General, State of New Jersey; KERRY L.
 MENCHEN, Deputy Attorney General, State of New Jersey; LOUIS M. BARBONE,
Esq.; GRAND JURY PROCEEDINGS EMPANELED FEBRUARY 23, 2005, Atlantic
                           County, New Jersey

                                ________________

                  On Appeal From the United States District Court
                           For the District of New Jersey
                            (D.C. Civ. No. 05-cv-3508 )
                    District Judge: Honorable Robert B. Kugler
                                ________________

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

              BEFORE: BARRY, AMBRO and FISHER, Circuit Judges

                               (Filed: March 5, 2007)
                                 ________________

                                    OPINION
                                ________________

PER CURIAM

     Michael R. Ray, proceeding pro se and in forma pauperis, appeals the dismissal of
his civil rights complaint. For the following reasons, we will dismiss the appeal pursuant

to 28 U.S.C. § 1915(e)(2)(B).

       Ray is a prisoner at the Federal Correctional Institution at Estill, South Carolina,

serving a seventy-month sentence imposed following a federal fraud conviction. In 2005,

Ray filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for

the District of New Jersey alleging that his federal rights were violated by the

unauthorized dissemination and use of a Presentence Investigation Report, which was

compiled pursuant to Ray’s federal conviction. Ray alleges that his court-appointed

counsel in the federal prosecution sent the report to Louis Barbone, a New Jersey attorney

representing Ray in matters arising from a state theft charge. Ray claims that Barbone

then forwarded the report to New Jersey Deputy Attorney General Kerry Menchen,1 who

allegedly used information contained in the document to further an additional criminal

investigation against Ray. This investigation yielded evidence that Ray perpetrated a

fraud upon the court after pleading guilty to the theft charge in 2002. In 2005, a grand

jury in Atlantic County, New Jersey indicted Ray on charges of bail jumping, forgery,

and falsifying records. These charges were pending at the time Ray filed his federal

complaint.

       The complaint names Menchen and Barbone as defendants, along with the State of

New Jersey; Atlantic County, New Jersey; the Superior Court of New Jersey; Peter C.

   1
    It appears from the exhibits attached to the complaint that Barbone was in the process
of negotiating an amended plea agreement relating to the theft charge and that the report
was transmitted as part of the negotiation.
                                              2
Harvey, Attorney General, State of New Jersey; and the grand jury panel that issued the

2005 indictment. Ray seeks monetary relief from Menchen, Barbone, and Harvey, and an

injunction ordering dismissal of the 2005 indictment. The United States District Court for

the District of New Jersey dismissed the complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii)-(iii) and § 1915A(b)(1)-(2) after concluding that all of Ray’s claims

were legally barred. Because Ray is proceeding in forma pauperis, we will dismiss the

appeal if it lacks an arguable legal or factual basis. See 28 U.S.C. § 1915(e)(2)(B);

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       We agree with the District Court that Ray has failed to state a claim under § 1983

against Atlantic County and Harvey. The complaint does not allege that either of these

parties had any direct involvement in the alleged wrongdoing. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). The claims against these parties fail to the extent

that Ray alleges they should be held liable based on their supervisory roles. See id. at

1207-08. Ray also cannot state a claim against the Superior Court of New Jersey because

that party is not a “person” subject to liability under § 1983. See Will v. Michigan Dept.

of State Police, 491 U.S. 58, 70-71 (1989); Johnson v. State of New Jersey, 869 F. Supp.

289, 296-97 (D.N.J. 1994). Moreover, the Eleventh Amendment bars Ray from obtaining

relief against this party. See Cory v. White, 457 U.S. 85, 91 (1982).

       Next, we agree with the District Court that the doctrine of absolute prosecutorial

immunity shields Menchen from liability for damages under § 1983. The doctrine

protects an official acting in a prosecutorial capacity from liability for acts committed

                                              3
while “initiating and pursuing a criminal prosecution and presenting the state’s case in

court.” Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001) (citing Imbler v. Pachtman,

424 U.S. 409, 430 (1976)); see also Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d

Cir. 2004) (holding that county prosecutor was immune for pre-indictment conduct,

including presentation of evidence to grand jury). Menchen is entitled to this defense

because Ray’s claims against her are solely based on her use of the contents of the report

in court proceedings antedating the 2005 indictment. The complaint does not allege that

Menchen disseminated the information while acting in a non-prosecutorial capacity. See

Yarris v. County of Delaware, 465 F.3d 129, 135-36 (3d Cir. 2006) (noting that immunity

does not apply if prosecutor committed misconduct while acting as an administrator or

investigator). We also note that the grand jurors are entitled to absolute immunity. See

United States v. Navarro-Vargas, 408 F.3d 1184, 1201 (9th Cir. 2005).

       Ray is also unable to state a claim under § 1983 against Barbone because he was

not acting under color of law at any time. See Groman v. Township of Manalapan, 47

F.3d 628, 633 (3d Cir. 1995). Although the complaint is unclear as to whether Barbone

was privately retained or appointed by the court, this distinction is irrelevant for the

purpose of determining whether he is a proper party to this action. A privately retained

attorney does not act under color of law for purposes of § 1983. See Henderson v. Fisher,

631 F.2d 1115, 1119 (3d Cir. 1980). Nor does a public defender act under color of law

“when performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981).

                                              4
       Furthermore, we note that Ray has requested an inappropriate form of injunctive

relief. We agree with the District Court that Younger v. Harris, 401 U.S. 37 (1971), bars

a federal court from ordering dismissal of the challenged indictment. See also Juidice v.

Vail, 430 U.S. 327, 335-36 (1977). If a conviction has taken place in the interim, Ray

must challenge it in state court before collaterally attacking it in federal court. See 28

U.S.C. § 2254; Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).

       Because Ray’s detailed complaint alleges misconduct committed by parties not

amenable to suit under § 1983 and seeks monetary and injunctive remedies that are

legally barred, the District Court did not err in dismissing the complaint without giving

Ray an opportunity to amend. See Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000)

(noting that leave to amend may be denied on futility grounds). For the foregoing

reasons, we conclude the appeal is meritless and we will dismiss it under 28 U.S.C. §

1915(e)(2)(B).




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