James Polidoro v. Gerald Saluti

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, KRAUSE and NYGAARD, Circuit Judges. Total Pages: 8.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1077
___________
JAMES J. POLIDORO,
Appellant
v.
GERALD M. SALUTI
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-09-cv-06392)
District Judge: Honorable Kevin McNulty
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2017
Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges
(Opinion filed: January 10, 2017)
___________
OPINION*
___________
PER CURIAM
The appellant, James J. Polidoro, appeals pro se from the District Court’s order

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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granting in part and denying in part his motion for a default judgment in this legal
malpractice diversity case. We will affirm.
I.
In December 2009, Polidoro commenced this diversity action in the District Court
against his former attorney, Gerald M. Saluti. See 28 U.S.C. § 1332. Polidoro stated that
he had retained Saluti to pursue a civil rights suit on his behalf, but that Saluti neglected
to file a complaint within the applicable statute of limitations.1 Polidoro, raising claims
of legal malpractice, negligence, breach of contract, and fraud, sought to recover both
attorney’s fees and the value of his intended civil rights suit. Polidoro properly served
Attorney Saluti with a Summons and Complaint, but Saluti never entered an appearance
or otherwise responded.
As a result of Saluti’s failure to defend, Polidoro commenced proceedings under
Rule 55 of the Federal Rules of Civil Procedure to obtain a default judgment against
him.2 The District Court ultimately determined that Polidoro was entitled to judgment

1

As discussed further below, Polidoro hired Saluti to represent him in a civil rights action
against various federal defendants relating to his 1999 conviction for a federal
racketeering offense and his ensuing incarceration.
2

This action lingered in the District Court for seven years. Polidoro filed his complaint
in 2009. The matter was dismissed without prejudice in June 2011 pending completion
of bankruptcy proceedings, and reopened in April 2012. In January 2013, the District
Court directed Polidoro to move for default judgment, but he failed to do so and the court
again dismissed the matter without prejudice. In December 2013, the District Court
reopened it. Polidoro then filed an amended complaint, properly served it, and, in
December 2014, moved for default judgment.
2

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against Saluti on his legal malpractice claim under New Jersey law. With respect to
damages, the District Court first ruled that Polidoro was entitled to the legal fees and
expenses he paid to Saluti, which totaled $12,820.13. The District Court then considered
the amount of damages Polidoro would have recovered had he been able to bring his
intended civil rights suit. Upon review of the record, however, the District Court
concluded that Polidoro’s intended civil rights suit was wholly meritless. Therefore, the
court assigned it only a nuisance value of $5,000.00.
Polidoro now seeks review of the District Court’s damages determination.
Polidoro contends that, contrary to the District Court’s conclusion, his civil rights action
would have succeeded, resulting in a $2 million award.3
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.4 We review
the District Court’s damages calculation in a default judgment case for an abuse of
discretion. See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
A.
In considering a motion for a default judgment under Rule 55(b)(2), a district court
should accept as true the well-pleaded factual allegations of the complaint, but the court
need not accept the moving party’s legal conclusions or allegations relating to the amount

3

4

Appellee Saluti has not participated in this appeal.

The Notice of Appeal initially appeared to be untimely, but the District Court
subsequently extended the appeal period pursuant to Fed. R. App. P. 4(a)(5).
3

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of damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). Rather, the
plaintiff must prove that he is entitled to the damages sought. Id.; DIRECTV Inc. v.
Pepe, 431 F.3d 162, 165 (3d Cir. 2005).
Under New Jersey law, a client seeking to recover damages against an attorney
who failed to file suit within the applicable limitation period must “establish the recovery
[that] the client would have obtained if malpractice had not occurred.” Frazier v. New
Jersey Mfrs. Ins. Co., 667 A.2d 670, 676 (quoting Osborne v. O’Reilly, 631 A.2d 577,
579 (N.J. Super. L., 1993)). To do so, a plaintiff may “proceed by way of a ‘suit within a
suit’ in which a plaintiff presents the evidence that would have been submitted at a trial
had no malpractice occurred.” Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 845
A.2d 602, 611–12 (N.J. 2004). Specifically, the plaintiff must show that, but for the
malpractice or other misconduct, “(1) he would have recovered a judgment in the action
against the main defendant, (2) the amount of that judgment, and (3) the degree of
collectibility of such judgment.” Id. (quoting Hoppe v. Ranzini, 385 A.2d 913, 917 (N.J.
App. Div. 1978)).
In support of his request for damages, Polidoro asserted that he had retained Saluti
to sue various federal defendants for their wrongful conduct relating to an error in the
judgment recorded in his 1999 federal racketeering case. The criminal judgment at issue
states that, on May 20, 1999, Polidoro pleaded guilty to conspiracy to commit “Extortion,
Racketeering and Threats” based on his role as a loan collector in the North Jersey
Faction of the Bruno-Scarfo Organized Crime Family. See 18 U.S.C. § 1962(d).
4

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According to Polidoro, however, he never agreed to this plea; rather, he agreed to plead
guilty only to “Collection of Extensions of Credit by Extortionate Means.” Id. § 894.
Polidoro explained to the District Court that, as a result of this error in the criminal
judgment, the Bureau of Prisons (BOP) denied him admission to a boot camp program,
placed him on “Central Inmate Monitoring” (CIM) status to separate him from certain
other prisoners, and denied his request to serve his last five months in a halfway house.
He also added complaints about the conditions of his confinement. Polidoro advised the
District Court that he had intended to assert violations of numerous tort and civil rights
laws, and had planned to name as defendants: the District Court; the U.S. Attorney’s
Office; U.S. Attorney Ron Wigler; the BOP; a number of BOP employees; and his
criminal defense attorney.
The District Court carefully considered Polidoro’s allegations against these federal
defendants and concluded that he failed to establish that he would have won his civil
rights suit. After confirming that there was no error in the criminal judgment,5 the
District Court explained that, whether he had asserted claims under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), the Federal Tort Claims Act (FTCA), or

Polidoro’s plea agreement states that he pleaded guilty to “Count One of the Indictment,
. . . which charges the defendant with Racketeering Conspiracy (specifically Racketeering
Acts 2, 6, 7, 8, and 21), in violation of 18 U.S.C. § 1962(d).” (D.N.J. Crim. No. 98-cr560, ECF No. 66.) For purposes of the Sentencing Guidelines, Polidoro stipulated that
the underlying racketeering activity is “loansharking.” (Id. at p. 5.) The District Court
reviewed the transcript of the plea hearing at length and confirmed that Polidoro
understood the terms of his plea at that time.
5

5

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New Jersey tort law, Polidoro would have faced numerous insurmountable obstacles to
recovery. Accordingly, the District Court concluded that Polidoro would have recovered
only the nuisance value of the suit if it had been pursued by a competent attorney.
B.
Upon review, we perceive no error in the District Court’s determination that
Polidoro would not have won his intended civil rights suit. The District Court issued a
thorough and well-reasoned opinion, and we need not repeat its analysis here. For
substantially the reasons stated by the District Court, we agree that the New Jersey
District Court, the U.S. Attorney’s Office, and the BOP (and its divisions) would not
have been subject to suit under Bivens, see Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
71-72 (2001) (explaining that a Bivens action cannot lie against the federal government
or its agencies), or the FTCA, see FDIC v. Meyer, 510 U.S. 471, 484-85 (1994) (stating
that only the United States is a proper defendant under the FTCA). We further agree that
the District Judge who presided over Polidoro’s criminal case would have been immune
from suit, see Mireles v. Waco, 502 U.S. 9, 11 (1991) (stating that judges are absolutely
immune for actions taken in judicial capacity), as would AUSA Wigler, see Imbler v.
Pachtman, 424 U.S. 409, 422-23 (1976) (stating that prosecutors are immune for actions
taken in prosecutorial capacity).
We also agree with the District Court that Polidoro’s purported claims against
various BOP officers would have failed. First, to the extent that Polidoro intended to use
Bivens to indirectly challenge the validity of his conviction, he would have been barred
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from doing so under Heck v. Humphrey. 512 U.S. 477, 486-87 (1994) (holding that, in
order to recover damages for an unconstitutional conviction or imprisonment, or for other
harm by actions whose unlawfulness would render a conviction or sentence invalid, a
plaintiff must prove that the conviction or sentence has been invalidated); see also Lora–
Pena v. F.B.I., 529 F.3d 503, 505 n.2 (3d Cir. 2008) (per curiam) (noting that Heck has
been applied to bar Bivens claims).6
Second, insofar as Polidoro sought to hold BOP officers liable for his belated
transfer, security classification decisions, and the denial of admission to a boot camp or
halfway house, they would most likely have been shielded from liability under the
doctrine of qualified immunity because these actions do not violate any clearly
established rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (explaining that
government officials performing discretionary functions are generally “shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known”); see
also Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that a prisoner’s due process
rights are violated only when he is deprived of a legally cognizable liberty interest, which

Polidoro’s claim that his defense attorney was negligent for failing to correct the error
in the criminal judgment would also have been Heck-barred. See Grier v. Klem, 591
F.3d 672, 677 (3d Cir. 2010) (explaining that, under Heck, “a prisoner does not have a
cognizable § 1983 claim, even if he or she does not seek relief from the fact or duration
of confinement, for alleged unconstitutional conduct that would invalidate his or her
underlying sentence or conviction unless that conviction has already been called into
question”).
7
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occurs when the prison “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life”).
Lastly, we agree with the District Court that, for substantially the reasons stated in
its opinion, Polidoro was not likely to succeed on his various objections to the conditions
of his confinement. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (holding that
conditions of confinement violate the Eighth Amendment only if they “deprive inmates
of the minimal civilized measure of life’s necessities”).7

III.
We have reviewed Polidoro’s remaining arguments on appeal and conclude that
they are meritless. Therefore, we will affirm the District Court’s judgment.8

7

The District Court recognized that Polidoro also wanted Saluti to include in his lawsuit
claims based on abusive behavior by prison personnel, such as Lieutenant Garraway’s
alleged June 24, 1999 “squeezing” of Polidoro’s “genitals,” and his threatening statement
that he “used to abuse and torture the shit out of two guineas,” and “loves abusing
guineas.” (Aff. in Support of Default J., ¶¶ 42, 43, ECF No. 55-1.) We add that any tort
claims “for an injury to the person cause by the wrongful act[ or] neglect . . . of any
person within [New Jersey]” would have been time-barred. See N.J. Stat. § 2A:14-2(a).
8

To the extent that Polidoro argues that the District Judge should have recused himself,
we see no request for recusal on the record. Furthermore, although Polidoro alleges that
Judge McNulty served as a U.S. Attorney during that office’s investigation into his case
in the 1990s, we have held that “absent a specific showing that that judge was previously
involved with a case while in the U.S. Attorney’s office that he or she is later assigned to
preside over as a judge, § 455(b)(3) does not mandate recusal.” United States v. Di
Pasquale, 864 F.2d 271, 279 (3d Cir. 1988).
8