Derek Bethea v. Mr. Donald Trump

CLD–151 NOT PRECEDENTIAL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

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Although the District Court dismissed Bethea’s complaint without prejudice, we1
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
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). Neitzke v. Williams, 490 U.S. 319, 325 (1989). In short,1
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

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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.

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