RODRIGUEZ v. THE STATE OF NEW JERSEY et al

Filing 15

OPINION APPLIES TO ALL ACTIONS. Signed by Judge Renee Marie Bumb on 12/11/2013. (tf, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-4101 (RMB)
Plaintiff,
:
:
v.
:
:
OPINION
THE STATE OF NEW JERSEY et al., :
APPLIES TO ALL ACTIONS
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-5866 (RMB)
Plaintiff,
:
:
v.
:
:
BERNARD E. DELURY, JR. et al., :
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-6131 (RMB)
Plaintiff,
:
:
v.
:
:
THE CITY OF SOMERS POINT et al.,:
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-6132 (RMB)
Plaintiff,
:
:
v.
:
:
BERNARD E. DELURY, JR.
:
:
Defendant.
:
_______________________________________
continued . . .

. . . continued
________________________________
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil
Plaintiff,
:
:
v.
:
:
STEPHANIE K. THEWS et al.,
:
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil
Plaintiff,
:
:
v.
:
:
THE STATE OF NEW JERSEY,
:
:
Defendant.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil
Plaintiff,
:
:
v.
:
:
MARK H. SANDSON et al.,
:
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil
Plaintiff,
:
:
v.
:
:
MARK H. SANDSON et al.,
:
:
Defendants.
:
_______________________________________
:

Action No. 13-6178 (RMB)

Action No. 13-6179 (RMB)

Action No. 13-7055 (RMB)

Action No. 13-7056 (RMB)

continued . . .
2

. . . continued
________________________________
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-7057 (RMB)
Plaintiff,
:
:
v.
:
:
JEROME MORSE et al.,
:
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-7058 (RMB)
Plaintiff,
:
:
v.
:
:
BERNARD E. DELURY, et al.,
:
:
Defendants.
:
_______________________________________
:
OPINION
APPLIES TO ALL ACTIONS
The ten civil matters come before the Court upon the Clerk’s
receipt of four civil complaints executed by Jean Emmanuel
Rodriguez (“Plaintiff”) and Plaintiff’s submission of his prison
account statement in the six civil actions Plaintiff previously
commenced in this District.

For the reasons detailed below,

Plaintiff’s in forma pauperis (“IFP”) status will be granted in
the four latest matters, and his complaints filed in those four
matters will be dismissed, with prejudice, for failure to state a
claim upon which relief can be granted and in light of them being
not amenable to cure by repleading.
3

The Court’s determination as to Plaintiff’s IFP status for
the purposes of the six matters he commenced prior will remain
reserved in light of: (a) Plaintiff’s failure to file an amended
pleading in each of those matters; and, (b) his failure to submit
a document conclusively establishing his incarceration status at
the time of his commencement of the first matter among those six.
Plaintiff will be allowed one last extension of time to file the
required amended complaints in these six actions;1 if he elects
to file an amended complaint in Rodriguez-I, he will be directed
to accompany the same with his affidavit averring to and
conclusively establishing his incarceration status at the time of
when he submitted his original complaint in that matter.
I. BACKGROUND
Plaintiff’s history of litigation in this District began on
July 2, 2013, when the Clerk received his first civil complaint
that gave rise to Rodriguez v. State of New Jersey (“RodriguezI”), Civil Action No. 13-4101 (RMB) (D.N.J.).

There, Plaintiff

named, as defendants, the State of New Jersey, New Jersey
Governor Chris Christie, then-New-Jersey-Attorney-General Jeffery
S. Chiesa, numerous individuals employed at the Office of New
Jersey Attorney General (i.e., Alan B. Handler, James R. Zazzali,

1

If Plaintiff files such amended complaints, the Court
will screen them for sua sponte dismissal, see 28 U.S.C. §§1915
and 1915A, and direct assessment of filing fees regardless of the
outcome of that screening. See Izquierdo v. State, 2013 U.S.
App. LEXIS 15533, at *2-3 and n.1 (3d Cir. July 25, 2013).
4

Edward J. Dauber, Theodore Z. Davis, John J. Farmer Jr., Theresa
M. Kiuck, Alice Click, Richard W. Roper, M. Karen Thompson), the
Atlantic County, numerous individuals performing various
functions for that County or for the vicinage of the Superior
Court of New Jersey, Law Division, having seat at that County
(i.e., Dennis Levinson, Judge Mark H. Sandson, Judge James E.
Isman, Judge Joseph 1. Marczyk, Judge Nelson C. Johnson, Theodore
F. L. Housel, Eric Shenkus, Erica Halayko, Jessica Ramirez), the
County of Essex County, two individuals performing functions for
that county or for vicinage of the Superior Court of New Jersey,
Law Division, having seat at that County (i.e., Joseph N.
DiVincenzo, Jr. and Judge Hutchins Henderson), Atlantic City,
numerous individuals performing various functions for that City
or its municipal courts (i.e., Lorenzo T. Langford, Judges Bruce
F. Weekes, Braun Littlefield, Kelly Hasson Blanchet, Michelle
Funk, Ernest Jubilee, John Devlin, Tim Friel, Sgt. Hendricks,
Arthur Freedman and unspecified “staff), City of Newark, nowUnited-States-Senator and then-Newark-Mayor, Corey Booker, and a
certain Natasha Purvey who performed functions for that City, as
well as two individuals whose connection to the above-listed
entities or individuals was not specified (i.e., Tracy L. Riley
and Pat Hallman).

The Rodruguez-I complaint concluded with the

following request for relief:

5

The State of New Jersey shall over[]turn every
conviction against [Plaintiff], and refund all monetary
assets falsely acquire, from [Plaintiff as a result of
his arrests, multiple criminal prosecutions and
numerous penal convictions, such as] (time, money,
social credibility, and all assets . . . . The
fraudulent entities in the Cities of Atlantic City and
Newark, and the Counties of Atlantic and Essex shall be
disbarred and brought up before the proper authorities
to answer for their actions. The State of New Jersey
and all participating entities shall pay every debt
acquired by [Plaintiff] during these transgressions.
The State of New Jersey shall provide free room, board,
and tuition [to Plaintiff] at New Jersey Institute of
Technology, so that [he could] obtain two bachelor
degrees of his choice. The State of New Jersey shall
[also] provide tuition, room, and board at Rutgers
University, so [that Plaintiff could] obtain a degree
in law and enter a master’s program [of unspecified
specialization]. The Cities of Atlantic City and
Newark shall contribute the sum $500,000.00 [British]
pounds to [ensure] the well-being of [Plaintiff].
Rodriguez-I, Docket Entry No. 1, at 2.
Since the IFP application submitted in conjunction with that
first complaint: (a) included the required affidavit of poverty;
and (b) suggested that Plaintiff was not in custody, the Court
granted Plaintiff IFP status for the purposes of Rodriguez-I and,
upon screening that complaint, dismissed it without prejudice to
filing an amended pleading and, to assist Plaintiff, detailed to
him the pleading requirement.

See id., Docket Entry No. 2.

Yet, when Plaintiff filed his amended Rodriguez-I pleading,
he named the same entities/individuals as defendants.
Docket Entry No. 3.

See id.,

Moreover, he made the same allegations; the

sole distinction between his original and amended pleading was

6

that he mentioned a certain “fraudulent hearing” conducted by the
Advisory Committee on Judicial Conduct (i.e., an arm of the
Supreme Court of New Jersey) in response to what, seemingly, had
been his filing of a grievance against one of the Superior Court
judges who presided over his criminal proceedings and/or his
direct appeal or collateral attack.

See id.

The Court screened that amended pleading and, taking notice
of factual insufficiency of Plaintiff’s allegations, dismissed it
too without prejudice, this time providing an in-depth discussion
of the pleading requirement.

See id., Docket Entry No. 4.

The second amended complaint followed.
Entry No. 5.

See id., Docket

It made the same demands, named the same entities/

individuals as defendants, and asserted, without a clarification,
the wrongs of “arresting Plaintiff without probable cause,”
“detaining Plaintiff for an extended period of time without
probable cause,” “ransoming Plaintiff’s freedom without probable
cause,” “continuously summoning Plaintiff without probable
cause,” “denying Plaintiff proper counsel,” “prosecuting
Plaintiff with fraudulent accusations,” “denying Plaintiff equal
rights under the law,” “conspiring against the civil rights of
Plaintiff,” “breach of verbal contract and defamation of
Plaintiff’s character.”

Id. at 3.

The Court screened Plaintiff’s second amended complaint and,
once again, dismissed it while re-explaining, this time at great
7

length, the pleading standard.
2-4.

See id., Docket Entry No. 6. at

Out of an abundance of caution, the Court allowed Plaintiff

one more opportunity to amend his Rodriguez-I pleadings.
Plaintiff, however, filed nothing in Rodriguez-I.

Rather,

on October 2, 2013, he submitted a new civil complaint that gave
rise to Rodriguez v. DeLury (“Rodriguez-II”), Civil Action No.
13-5866 (RMB) (D.N.J.).

See Rodriguez-II, Docket Entry No. 1.

Taking notice of the similarities between the allegations
raised in Rodriguez-I and Rodriguez-II (and the deficiencies of
those allegations), and mindful of the possibility that Plaintiff
might have inadvertently commenced this new action, the Court
construed his Rodriguez-II pleading as Plaintiff’s third amended
complaint intended for filing in Rodriguez-I.

The Court, thus,

terminated Rodriguez-II as duplicative and, upon screening the
so-construed third amended complaint, dismissed it without
prejudice and, once again, extending Plaintiff’s time to amend
his pleading in Rodriguez-I.2

See id., Docket Entry No. 3.

Plaintiff however, did not file anything in Rodriguez-I.
Nor did he make any submissions in Rodriguez-II.

2

Rather, he

The Rodriguez-II complaint named, as defendants,
Honorable Bernard DeLury, a state court judge, state prosecutor
James McClaim and a certain Geraldine Cohen. It alleged that the
judge and the prosecutor “operate[d] an inferior court,” while
Cohen had Plaintiff “physically confined on a warrant” Plaintiff
deemed defective for the reason it was issued by an entity
Plaintiff did not know. Rodriguez-II, Docket Entry No. 1, at 1.
8

submitted four new civil complaints that gave rise, respectively,
to Rodriguez v. City of Somers Point (“Rodriguez-III”), Civil
Action No. 13-6131 (RMB) (D.N.J.); Rodriguez v. DeLury
(“Rodriguez-IV”), Civil Action No. 13-6132 (RMB) (D.N.J.);
Rodriguez v. Thews (“Rodriguez-V”), Civil Action No. 13-6178
(RMB) (D.N.J.); Rodriguez v. New Jersey (“Rodriguez-VI”), Civil
Action No. 13-6179 (RMB) (D.N.J.).3

3

The complaint in Rodriguez-III alleged that the City of
Somers Point and its municipal court, as well as the City’s
police department, were “depriv[ing] Plaintiff . . . of life and
liberty by false accusations, violation of probable cause, and .
. . den[ial of] due process” and sought an “audio-video evidence
from [Plaintiff’s] holding cell,” an order directing deposition
of a certain police officer, and this Court’s verification of the
jurisdiction and “validity of the inferior” Superior Court of New
Jersey, as well as $1 million in damages sought for Plaintiff’s
“emotional distress, psychological abuse and social degradation.”
The complaint in Rodriguez-IV stated Plaintiff’s sovereign
citizenship beliefs and asserted claims based on those beliefs,
while maintaining that Judge DeLury violated Plaintiff’s rights
by declining his request for verification of the Superior Court’s
jurisdictional mandate to prosecute Plaintiff. The complaint in
Rodriguez-IV closed by requesting “dismissal” of all New Jersey
penal statutes and $1 million in damages for Plaintiff’s
“emotional distress, psychological abuse, social degradation and
physical discomfort.” The complaint in Rodriguez-V named, as
defendants, Stephanie K. Thews, John G. Barbieri, Howard Freed,
Mark G. Mcelwee, Jr., Shawn G. Mckelvey and John J. Miller and
alleged that they “deprived” him “of life and liberty” by
submitting testimonies that Plaintiff deemed fraudulent. The
Rodriguez-V complaint asked this Court to make evidentiary
rulings in Plaintiff’s currently ongoing state court prosecution,
recited the request for dismissal of all New Jersey penal
statutes (albeit limiting that request to the provisions
underlying Plaintiff’s past and current prosecutions) and sought
compensatory damages in the amount of $1,000 for each day of
Plaintiff’s incarceration. Finally, the Rodriguez-VI complaint
named the State of New Jersey and the Governor’s Office as
defendants, asserted “depriv[ation] of life, liberty, property
9

Unlike in Rodriguez-I, the complaints in Rodriguez-II, III,
IV, V and VI arrived unaccompanied by Plaintiff’s filing fee or
his IFP applications.

Moreover, those submissions suggested that

Plaintiff’s IFP application submitted in Rodriguez-I might have
been deficient for lack of Plaintiff’s account statement since it
appeared that Plaintiff might have already been placed in custody
at the time when he submitted his original Rodriguez-I complaint.
The Court, therefore, denied Plaintiff IFP status without
prejudice for the purposes of Rodriguez-II, III, IV, V and VI,
and suspended Plaintiff’s IFP status for the purposes of
Rodriguez-I, reserving that determination until Plaintiff’s
submission of his prison account and his showing that he was not
in custody at the time of commencing Rodriguez-I.

In conjunction

with the same, the Court allowed Plaintiff “one final opportunity
to amend his claims scattered among his many complaints” in those
six matters.

See Rodriguez v. New Jersey, 2013 U.S. Dist. LEXIS

152630, at *16 (D.N.J. Oct. 23, 2013) (opinion applicable to
Rodriguez-I, II, III, IV, V and VI).

The Court clarified that

such final set of amended pleadings had to be executed “in strict
compliance with the pleading requirement the Court already
explained to Plaintiff time and again[,] . . . free of any

and due process,” and sought $5 million for Plaintiff’s
"emotional distress, psychological abuse, social degradation,"
and $10,000 per each hour of his incarceration.
10

sovereign citizenship, redemptionist . . . and akin allegations,”
free of habeas and duplicative challenges and, in addition, in
compliance with the requirements of Rules 15, 18 and 20, which
the Court explained to Plaintiff in great detail to assist him in
producing a viable set of amended pleadings.

Id. at *16-20.

Two groups of Plaintiff’s submissions followed.

In

Rodriguez-I, II, III, IV, V and VI, Plaintiff made six identical
filings consisting of: (a) his prison account statement covering
the period from August 12, 2013, to November 3, 2013; and (b) a
statement from an officer of the Atlantic County Jail (“ACJ”)
that Plaintiff entered that facility on August 12, 2013.4
e.g., Rodriguez-I, Docket Entry No. 14.

See,

None of these

submissions was accompanied by an amended pleading.
The other group of submissions consisted of four new civil
complaints that gave rise, respectively, to: (a) Rodriguez v.
Sandson (“Rodriguez-VII”), Civil Action No. 13-7055 (RMB)
(D.N.J.); (b) Rodriguez v. Sandson (“Rodriguez-VIII”), Civil
Action No. 13-7056 (RMB) (D.N.J.); (c) Rodriguez v. Morse
(“Rodriguez-IX”), Civil Action No. 13-7057 (RMB) (D.N.J.); and

4

The fact that Plaintiff entered the ACJ on August 12,
2013, is not dispositive for the purposes of the inquiry as to
whether he was in custody on July 2, 2013, when he submitted his
original Rodriguez-I complaint. Plaintiff, currently a pre-trial
detainee, might have been held at another facility at that time.
Hence, he will be allowed an opportunity to submit an affidavit
averring as to the periods when he was in any form of custody.
11

(d) Rodriguez v. DeLury (“Rodriguez-X”), Civil Action No. 13-7058
(RMB) (D.N.J.).These complaints arrived within three-four days
after submission of IFPs in Rodriguez-I, II, III, IV, V and VI.
The Rodriguez-VII complaint named, as defendants, Honorable
Mark H. Sandson, a state judge (“Judge Sandson”), public defender
Eric Shenkis, Esq., as well as Erica Zerlyko, Esq. (“Zerlyko”), a
prosecutor, and Pat Hallman, a state court stenographer.
Rodriguez-VII, Docket Entry No. 1, at 3-4 and 7.

See

The complaint

alleged that Judge Sandson violated Plaintiff’s rights by
admitting a certain witness’ testimony into evidence and being
willing to accept Plaintiff’s guilty plea, while the public
defender violated Plaintiff’s rights by recommending him to
accept the plea offer.

Plaintiff also asserted that Zerlyko

violated Plaintiff’s rights by proffering the aforesaid witness
testimony, as well as by offering him that plea deal,5 while the
stenographer violated his rights by taking down Plaintiff’s

5

Plaintiff’s other filings suggest that this witness might
have been the municipal judge who presided over Plaintiff’s prior
criminal prosecution and, in addition, over Plaintiff’s postconviction relief (“PCR”) proceedings. See Rodriguez-IX, Docket
Entry No. 1, at 5. It also appears that, at conclusion of an
evidentiary hearing held in that PCR proceedings, Petitioner made
certain statements about and to that municipal judge, and these
statements – being qualified as terroristic threats – gave rise
to Plaintiff’s currently ongoing criminal prosecution. It also
appears that, upon this municipal judge’s filing of the charges
that gave rise to Plaintiff’s current criminal prosecution,
Plaintiff filed a grievance with the Advisory Committee on
Judicial Conduct, seeking actions against that municipal judge.
12

testimony in the fashion Plaintiff deemed incorrect.

See id. at

4-5 and 7.
Plaintiff requested $1 million for “emotional, physical,
psychological and social distress,” $50,000 “for two semesters
[he] lost at [college] due to [Defendants’] constant harassment,”
and $100,000 “for the legal work [he] did.”

Id. at 6.

The Rodriguez-VIII complaint named, as defendants, Judge
Sandson, another prosecutor, i.e., Theodore Housel, Esq.
(“Housel”). See Rodriguez-VIII, Docket Entry No. 1, at 4.

It

asserted that Judge Sandson violated Plaintiff’s right by denying
his application for PCR relief, while Housel violated his rights
by filing a PCR brief opposing Plaintiff’s application and
defending the State’s position.

See id. at 4-5.

In

Rodriguez-VIII, Plaintiff requested the following relief: “I
desire all convictions over[]turned and $50,000 dollars for the
legal work I produced that [I] furnished [at] the [PCR
evidentiary] hearing.

I [also] desire $20,000 for the time lost

and one million dollars for emotional, psychological and social
distress.”

Id. at 6.6

6

In sum, it appears that the Rodriguez-VII complaint
focused on Plaintiff’s prior criminal proceedings at the trial
level, while his Rodriguez-VIII complaint focused on Plaintiff’s
prior criminal proceeding at the PCR (i.e., collateral attack)
level, that included the evidentiary hearing during which
Plaintiff made the statements underlying his current prosecution.
13

The complaint in Rodriguez-IX named five other persons as
defendants.

See Rodriguez-IX, Docket Entry No. 1, at 1.

The

complaint asserted that, on July 15, 2006, a certain New Jersey
Transit Police Officer directed Plaintiff to leave a public bus
(which Plaintiff then-just-boarded), but Plaintiff refused to
comply with that directive, and so the Transit Police Officer
arrested him on that basis.7

Plaintiff named, as defendants,

that municipal judge, the public defender who represented
Plaintiff in that municipal matter, two other prosecutors (who
prosecuted that municipal matter) and his arresting officer.
See Rodriguez-IX, Docket Entry No. 1, at 1, 3-4 and 7.

The

Rodriguez-IX complaint closed with a request for $5 million in
damaged “for the emotional, physical, psychological and social
distress” and also a request to commence criminal proceedings
against all defendants named in that matter.8

See id. at 6.

7

Since this arrest triggered Plaintiff’s prosecution
before a municipal judge, it appears that the arrest challenged
in Rodriguez-IX is the transaction directly related to and
preceding: (1) Plaintiff’s criminal prosecution challenged in
Rodriguez-VII, which included the plea offer and the judicial
ruling as to admissibility of a certain testimony; and, also, (2)
Plaintiff’s following PCR proceeding challenged in RodriguezVIII, where Plaintiff made the statements underlying his current
prosecution on the terroristic threats charges. See supra, n.5.
8

Plaintiff is without a right to demand or force criminal
prosecution of any Defendant because the “authority to initiate a
criminal complaint rests exclusively with state and federal
prosecutors.” Davis v. Cumberland County Dep’t of Corr., 2013
U.S. Dist. LEXIS 142305, at *41-42 (D.N.J. Oct. 2, 2013) (quoting
Marinari v. Trump Plaza Hotel & Casino, 2012 U.S. Dist. LEXIS
14

Finally, the Rodriguez-X complaint named Judge DeLury and
yet another prosecutor, Richard McKelly, Esq. (“McKelly”) as
defendants.

See Rodriguez-X, Docket Entry No. 1, at 1 and 4.

In

Rodriguez-X, Plaintiff has reverted to the current events and
alleged that Judge DeLury has been violating his rights by
presiding over Plaintiff’s currently ongoing prosecution,
refusing Plaintiff’s pro se application for taking judicial
notices of certain unspecified constitutional provisions and
directing Plaintiff’s confinement on the basis of a state statute
Plaintiff deems unrelated to the penal provision underlying his
charges.9

See id. at 4.

As to McKelly, Plaintiff asserts that

80011, at *18 (D.N.J. June 8, 2012) (quoting, in turn, Collyer v.
Darling, 98 F.3d 211, 222 (6th Cir. 1996)) and citing United
States v. Jarvis, 560 F.2d 494, 497 (2d Cir. 1977); Pokalsky v.
SEPTA, 2002 U.S. Dist. LEXIS 16175 (E.D. Pa. Aug. 28, 2002);
Savage v. Arnold, 403 F. Supp. 172 (E.D. Pa. 1975); United States
v. Blierley, 331 F. Supp. 1182 (W.D. Pa. 1971); Brown v. Duggan,
329 F. Supp. 207 (W.D. Pa. 1971); and Spader v. Wilentz, 25
F.R.D. 492 (D.N.J), aff’d, 280 F.2d 422 (3d Cir.), cert. denied,
364 U.S. 875 (1960)). Moreover, “[t]his Court is without
authority to do so on Plaintiff’s behalf.” Id. at 42 (citing
Maine v. Taylor, 477 U.S. 131, 137 (1986); Heckler v. Chaney, 470
U.S. 821, 832 (1985); Leeke v. Timmerman, 454 U.S. 83, 86-87
(1981); United States v. General Dynamics Corp., 828 F.2d 1356,
1366 (9th Cir. 1987)). “[T]he district court [is obligated to]
refus[e] fil[ing] criminal charges or . . . compel[ing]
prosecution based on those charges.” Id. (relying on Ellen v.
Stamm, 1991 U.S. App. LEXIS 30558 (9th Cir. 1991), cert. denied
sub nom, Montalvo v. Stamm, 506 U.S. 1047 (1993)).
9

Hence, it appears that the chain of events challenged in
Plaintiff’s four latest actions was as follows: (a) in 2006,
Plaintiff is arrested for refusing to comply with a Transit
Officer directive; (b) a municipal-level criminal proceeding is
commenced against him; (c) Plaintiff is offered a plea in that
15

he has been violating Plaintiff’s rights by proffering an
affidavit executed by a certain witness.10

See id. at 4.

Plaintiff seeks this Court’s order directing Judge Delury to
verify his jurisdictional mandate, immediate commencement of
Plaintiff’s criminal prosecution in the state forum and
disclosure of any additional evidence McKelly might have in
support of the aforesaid witness’ affidavit.

See id. at 6.

In

addition, Plaintiff seeks $1,000 for each hour of incarceration,
$100,000 for his “legal effort” and £100,000 (British Pounds) for
“emotional, physical, psychological and social distress.”
II.

Id.

DISCUSSION
Since the pleading requirement of Rule 8 have already been

detailed by this Court to Plaintiff four times around, another

matter; (d) Plaintiff is convicted in that municipal action; (e)
Plaintiff commences a PCR proceedings; (e) the PCR judge grants
Plaintiff’s application for an evidentiary hearing; (f)
Plaintiff, failing to prevail at that hearing, makes statements
that prompt the presiding judge file criminal charges against
Plaintiff, asserting terroristic threats; (g) another round of
criminal proceedings is commenced on the basis of these charges,
this time at the Law Division level; and (h) Plaintiff is
currently held in pre-trial custody awaiting trial on these
charges. These challenges, taken out of any chronological order,
are scattered among Plaintiff’s four latest complaints and,
seemingly, might have been hinted at in those complaints that had
been submitted in Plaintiff’s previously commenced six matters.
10

Plaintiff’s submissions suggest that the witness might
have been a staff employee serving the municipal judge with
regard to whom Plaintiff made statements qualified as terroristic
threats, since it appears that the witness made certain averments
to witnessing Plaintiff’s utterances of these statements.
16

recital of the same appears superfluous.

In contrast, since

Plaintiff’s challenges raised in his four latest complaints
implicate the same substantive tests (albeit with regard to
different transactions), it appears warranted to begin the
discussion by detailing these tests and then assess Plaintiff’s
allegations in light of those substantive standards.
A.

Judicial, Prosecutorial and Witness Immunities

“[J]udges are immune from suit under section 1983.”

Gallas

v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000); see
also Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam).
Judicial immunity applies to all actions that are “judicial” in
nature, see Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978), that
is, all “function[s] normally performed by a judge . . . in his
judicial capacity.”

Id. at 362.

“‘[Plaintiff’s] allegations of

bad faith [and] malice’ cannot overcome [judicial] immunity."
Abulkhair v. Rosenberg, 457 F. App’x 89 (3d Cir. 2012) (quoting
Mireles, 502 U.S. at 11); see also Gallas, 211 F.3d at 769 (“an
act does not become less judicial by virtue of an allegation of
malice or corruption of motive,” or that such act is “unfair” or
“controversial”); accord Stump, 435 U.S. at 363 (“[d]isagreement
with the action taken by the judge . . . does not justify
depriving the judge of his immunity”).

“[J]udges . . . 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
17

been done maliciously or corruptly.”

Figueroa v. Blackburn, 208

F.3d 435, 440 (3d Cir. 2000) (quoting Stump, 435 U.S. at 355-56).
Prosecutors are also absolutely immune from actions under §
1983 for “initiating and pursuing a criminal prosecution.”
Kalina v. Fletcher, 522 U.S. 118, 123 (1997) (quoting Imbler v.
Pachtman, 424 U.S. 409, 410 (1976)).

Thus, “a state prosecuting

attorney who act[s] within the scope of his duties initiating and
pursuing a criminal prosecution” is not amenable to suit under §
1983.

Imbler, 424 U.S. at 410.

Correspondingly, a prosecutor’s

appearances and statements made in court or applications for
certain favorable-to-the-State decisions, or briefs advocating
the State’s position, or the presentation of evidence at hearings
and trial are protected by absolute immunity.
500 U.S. 478, 492 (1991).

See Burns v. Reed,

Similarly, “acts undertaken by a

prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the
protections of absolute immunity.”

Buckley v. Fitzsimmons, 509

U.S. 259, 273 (1993).
Furthermore, witnesses are absolutely immune from civil
damages based upon their testimony.
U.S. 325, 341-46 (1983).

See Briscoe v. LaHue, 460

That immunity extends to all witnesses,

including government investigators and enforcement officers, and
to all forms of court proceedings, including trial and pre-trial
18

stages, such as grand jury, evidentiary hearings, etc.

See

Rehberg v. Paulk, 132 S. Ct. 1497, 182 L. Ed. 2d 593 (2012);
Kulwicki v. Dawson, 969 F.2d 1454, 1467 n.16 (3d Cir. 1992).
B.

Color of Law Requirement

While not “immune” from suit or liability, an attorney may
be entitled to dismissal of constitutional challenges on the
ground that they fails to state a color-of-law claim.
because lawyers, typically, are not “state actors.”

This is so

“[A] lawyer

representing a client is not, by virtue of being an officer of
the court, a state actor ‘under color of state law’ within the
meaning of § 1983.”11
(1981).

Polk County v. Dodson, 454 U.S. 312, 318

Paramount here, the color-of-law requirement does not

distinguish between privately-retained an appointed counsel.
Thus, a public defender “does not act under color of state law

11

To recover against a defendant under 42 U.S.C. § 1983, a
plaintiff must establish that the defendant acted under “color of
[state] law” to deprive him of a right secured by the federal
Constitution or laws. See Groman v. Twp. of Manalapan, 47 F.3d
628, 633 (3d Cir. 1995). Section 1983 does not create any
substantive rights; rather, it provides an avenue of recovery for
the deprivation of established federal constitutional and
statutory rights. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d
Cir. 1996); Groman, 47 F.3d at 633. “The color of state law . .
. is a threshold issue; there is no liability under [Section]
1983 for those not acting under color of law.” Id. at 638. The
color of state law element in a section 1983 action requires that
“the conduct allegedly causing the deprivation of [plaintiff’s
rights] be fairly attributable to the State.” Lugar v. Edmonson
Oil Co., 457 U.S. 922, 937 (1982).
19

when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.”
C.

Polk, 454 U.S. at 325.

Other Applicable Judicial Doctrines

In a series of cases beginning with Preiser v. Rodriguez,
411 U.S. 475 (1973), the Supreme Court has analyzed the
intersection of 42 U.S.C. § 1983 and the federal habeas corpus
statute, 28 U.S.C. § 2254.

In Preiser, state prisoners who lost

good-conduct-time credits as a result of disciplinary proceedings
brought a § 1983 action seeking injunctive relief to compel
restoration of these credits.

See id. at 476. The Supreme Court,

however, held that “when a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate release
or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.”

Id. at 500.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
addressed a corollary question to that presented in Preiser,
i.e., whether a prisoner could implicitly challenge the
constitutionality of his conviction in a § 1983 suit seeking only
damages (a form of relief not available through a habeas corpus
proceeding).

Again, the Court rejected § 1983 as a vehicle to

implicitly challenge the lawfulness of a criminal judgment.
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
20

render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
Id. at 486-87 (footnote omitted).
In light of a prisoner’s inability to initiate a valid §
1983 action for wrongful conviction until and unless such
conviction is overturned, Heck coined the concept of prematurity,
pursuant to which “a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does
not accrue until the conviction or sentence has been invalidated”
by a habeas writ or state court determination.

Id. at 489-90.

Furthermore, while Heck posed limitations on the scope of
actions amenable to civil challenges post-conviction, another
doctrine poses limitations on the scope of federal interference
in state actions pre-judgement.

Specifically, the doctrine of

abstention, which has developed since Younger v. Harris, 401 U.S.
37 (1971), “espouse[s] a strong federal policy against
federal-court interference with pending state judicial
proceedings absent extraordinary circumstances.”

Middlesex

County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423,
431 (1982).

“Younger abstention . . . is premised on the notion

21

of comity, a principle of deference and ‘proper respect’ for
state governmental functions in our federal system.” Evans v.
Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1234
(3d Cir. 1992), cert. dismissed, 506 U.S. 1089 (1993).

Comity

concerns are especially heightened when the ongoing state
governmental function is a criminal proceeding.

See id.

Therefore, absent a narrow exception, federal courts do not
interfere in ongoing state proceedings, moreover prosecutions.12
D.

Timeliness

Civil rights claims are best characterized as personal
injury actions and are governed by the applicable state’s statute
of limitations for personal injury actions.
Garcia, 471 U.S. 261, 280 (1985).

See Wilson v.

Here, claims are governed by

New Jersey’s two-year limitations period for personal injury
actions based on a wrongful act, neglect, or default, N.J. Stat.

12

The Younger abstention is warranted if: “(1) there are
ongoing state proceedings [of] judicial . . . nature; (2) the
state proceedings implicate important state interests; and (3)
the state proceedings afford an adequate opportunity to raise
federal claims.” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.
1989). Where the plaintiff has not asserted that he is unable to
present his federal claims in his related state court proceedings
the court may assume that the state procedures will afford an
adequate remedy. See Cade v. Newman, 422 F. Supp. 2d 463, 466,
n.2 (D.N.J. 2006) (abstaining from addressing the plaintiff’s
arrest-without-probable-cause and denial-of-speedy-trial claims
upon citing Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995),
citing, in turn, Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17
(1987) (“Initially, we must presume that the state courts are
able to protect the interests of the federal plaintiff”)).
22

Ann. § 2A:14-2.

See Montgomery v. DeSimone, 159 F.3d 120, 126 &

n.4 (3d Cir. 1998); Cito v. Bridgewater Township Police Dep’t,
892 F.2d 23, 25 (3d Cir. 1989).

Therefore, unless an appropriate

tolling applies, an untimely claim is subject to dismissal for
failure to meet the statute of limitations requirement.13
E.

Plaintiff’s Complaints Fail to State a Viable Claim

In light of the foregoing, Plaintiff’s challenges raised in
Rodriguez-VII, VIII, IX and X are facially deficient.
1.

Rodriguez-VII

In Rodriguez-VII, Plaintiff’s claims against Judge Sandson
are based on Judge Sandson’s decision to admit a certain witness’
testimony and Judge Sandson’s willingness to accept Plaintiff’s
guilty plea.

These acts are of undisputably judicial nature and,

therefore, covered by absolute immunity.14

13

A federal court adopting a state statute of limitations
will also apply that state’s interrelated limitations provisions
regarding tolling, revival, and questions of application. See
Wilson v. Garcia, 471 U.S. 261, 269 (1985). The statutes set
forth certain bases for “statutory tolling,” see, e.g., N.J.
Stat. Ann. §§ 2A:14-21 and -22, and New Jersey law permits
“equitable tolling” where “the complainant has been induced or
tricked by his adversary’s misconduct into allowing the filing
deadline to pass,” or where a plaintiff has “in some
extraordinary way” been prevented from asserting his rights, or
where a plaintiff has timely asserted his rights mistakenly by
either defective pleading or in the wrong forum. See Freeman v.
State, 347 N.J. Super. 11, 31 (N.J. Super. Ct. App. Div.),
certif. denied, 172 N.J. 178 (2002).
14

Plaintiff’s claims against a court stenographer are
deficient for the same reason. See Davis v. Philadelphia County,
195 F. Supp. 2d 686 (E.D.Pa.2002) (quasi-judicial immunity
23

Plaintiff’s claims against prosecutor Zerlyko are barred by
prosecutorial immunity, since they are based on Zerlyko’s acts of
representing the State in Plaintiff’s first criminal proceeding,
i.e., proffering a witness’ testimony and offering a plea deal.
Finally, Plaintiff’s claims that his public defender
violated his rights by recommending to accept a plea deal are
deficient for lack of color of law.15

applies to court staff, such as clerks of judicial records and
court reporters performing nondiscretionary, purely court-routine
actions); accord Wicks v. Lycoming Co., 456 F. App’x 112, 115 (3d
Cir. 2012) (a court administrator is absolutely immune from a
suit for damages for transferring case from one judge to
another); Wallace v. Abell, 217 F. App’x 124 (3d Cir. 2007)
(court personnel are immune for nondiscretionary acts such as
entering orders and notifying parties). Here, Plaintiff asserted
claims against a court stenographer on the basis of the
stenographer’s act of taking down Plaintiff’s testimony during a
hearing. Since this is a nondiscretionary action on the part of
the stenographer, Plaintiff’s allegations are barred by quasijudicial immunity. In the event Plaintiff is disputing the
transcript, his remedy is an application to his presiding judge
for reconciliation of the disputed portion of the transcript.
However, Plaintiff has no constitutional right to such measure.
15

A public defender who conspires with the prosecutor to
secure her client’s conviction is acting under color of state
law. See Tower v. Glover, 467 U.S. 914, 920 (1984). Yet, “a
bare assertion of conspiracy will not suffice” and, without more,
“a conclusory allegation of agreement at some unidentified point
does not supply facts” adequate to state a conspiracy claim
under § 1983. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007). As the Court explained, “terms like ‘conspiracy,’ or
even ‘agreement,’ are border-line: they might well be sufficient
in conjunction with a more specific allegation — for example,
identifying a written agreement or even a basis for inferring a
tacit agreement, . . . but a court is not required to accept such
terms as a sufficient basis for a complaint.” Id. at 557
(quoting DM Research, Inc. v. College of Am. Pathologists, 170
F.3d 53, 56 (1st Cir. 1999)). Here, Plaintiff neither asserted
24

Therefore, Plaintiff’s Rodriguez-VII are subject to
dismissal for failure to state a claim upon which relief can be
granted.

Moreover, since Plaintiff’s repleading would neither

dissolve judicial and prosecutorial immunities nor supply color
of law to Plaintiff’s allegations against his public defender,
and since Plaintiff numerously tapped the same allegations in his
Rodriguez-I, II, III, IV, V and VI complaints and was availed to
four rounds of repleading but did not produce a viable claim,
issuing Plaintiff another leave to amend would be futile.

See

Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227
F.3d 107, 121 (3d Cir. 2000); Coventry v. U.S. Steel Corp., 856
F.2d 514, 519 (3d Cir. 1988).

Therefore, his Rodriguez-VII

complaint will be dismissed with prejudice.
2.

Rodriguez-VIII

The deficiencies of Plaintiff’s Rodriguez-VIII complaint are
substantively identical to those detailed supra.

In

Rodriguez-VIII, Plaintiff’s challenged the events of his PCR
proceedings by asserting that Judge Sandson wrongly denied him
relief, that prosecutor Housel erred in electing to oppose
Plaintiff’s PCR application and defending the State’s position.

the facts of a conspiracy nor alleged any conspiracy or agreement
between his public defender and the prosecutor. Furthermore,
Plaintiff’s extensive discussions of his first prosecution do not
indicate that he has any specific facts, rather than hypothetical
or bold conclusions, that might establish a conspiracy.
25

However, Judge Sandson’s actions were of judicial nature, and
those of Housel unambiguously qualify as covered by prosecutorial
immunity.

Therefore, Plaintiff’s Rodriguez-VIII complaint should

be dismissed for failure to state a claim, and – since Plaintiff
cannot replead his claims so to dissolve these immunities (and he
had already had many opportunities to replead these claims in his
Rodriguez-I, II, III, IV, V and VI actions), issuing him another
leave to amend would be futile.

See Foman, 371 U.S. at 182;

Alvin, 227 F.3d at 121; Coventry, 856 F.2d at 519.

Thus, his

Rodriguez-VIII complaint will be dismissed with prejudice.
3.

Rodriguez-IX

In Rodriguez-IX, Plaintiff raised challenges based on his
July 15, 2006, arrest and the early stages of the criminal
proceedings that followed.

While this Court cannot rule out the

possibility that Plaintiff’s first prosecution might have
protracted long enough to take Plaintiff’s claims based on the
in-court events outside the statute of limitations bar, it is
self-evident that Plaintiff’s arrest-based claims have been
rendered untimely on July 14, 2008, i.e., two years after that
arrest and more than five years prior to his filing of the
Rodriguez-IX complaint.
dismissed.16

Thus, these claims should be

Moreover, since Plaintiff’s multiple submissions

16

Since Plaintiff asserted that his arrest resulted from
his refusal to comply with a Transit Officer’s directives, it
26

indicate that he has engaged into multiple active litigations
starting 2006, it is apparent that he could have commenced a
timely civil rights action based on that arrest had wished to.17
Cf. Munchinski v. Wilson, 694 F.3d 308, 331 (3d Cir. 2012) (a
litigant shall not be rewarded for “sleeping on his rights”).

appears that the arrest was executed with probable cause. “The
proper inquiry in a Section 1983 claim based on false arrest . .
. is not whether the person arrested in fact committed the
offense but whether the arresting officers had probable cause to
believe the person arrested had committed the offense.” Dowling
v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). “[W]hen an
officer has probable cause to believe a person committed even a
minor crime[,] . . . the balancing of private and public
interests is not in doubt [and t]he arrest is constitutionally
reasonable.” Virginia v. Moore, 553 U.S. 164, 171 (2008).
Correspondingly, a plaintiff must state “the facts [showing that,
under the] circumstances within [the officer’s] knowledge, a
reasonable officer could not have believed that an offense had
been or was being committed by the person to be arrested.”
Mosley v. Wilson, 102 F.3d 85, 94-5 (3d Cir. 1996); accord Revell
v. Port Authority of New York, New Jersey, 598 F. 3d 128, 137
n.16 (3d Cir. 2010). Here, Plaintiff concedes that his arrest
resulted not from the fact that he boarded a bus but from the
fact of his refusal to comply with a law enforcement officer’s
orders. However, in light of the facial untimeliness of
Plaintiff’s arrest-based claims, this Court need not reach the
issue of their substantive sufficiency.
17

Indeed, Plaintiff’s numerous complaints praised
Plaintiff’s litigation talent and numerous efforts, and valued
the latter in thousands of dollars. Moreover, to the extent a
disposition of Plaintiff’s civil rights challenges could have
interfered with resolution of the criminal charges associated
with that arrest, Plaintiff could have avoided that conflict by
timely filing and then seeking stay of his search and seizure
challenges. See Wallace v. Kato, 549 U.S. 384, 393-94 (2007)
(“{I]t is within the power of the district court, and in accord
with common practice, to stay the civil action until the criminal
case or the likelihood of a criminal case [based on the very same
events that gave rise to the civil action] is ended”).
27

Thus, no equitable tolling could apply to Plaintiff’s arrestbased claims.

And, since Plaintiff cannot cure the untimeliness

of this line of claims by repleading, issuing him another leave
to amend would be facially futile.

See Foman, 371 U.S. at 182.

As to the remainder of Plaintiff’s Rodriguez-IX claims,
these claims – even if presumed timely due to a hypothesized here
protraction of Plaintiff’s first criminal proceeding – are
subject to dismissal on the same grounds as Plaintiff’s
challenges raised in Rodriguez-VII and Rodriguez-VIII.

Indeed,

Plaintiff’s claims against the municipal judge who presided over
his first prosecution are barred by judicial immunity, while his
claims against the prosecutors who commenced and prosecuted those
proceedings are barred by prosecutorial immunity.18

Plaintiff’s

claims against the public defender who represented him in that

18

To the extent Plaintiff wished to assert claims against
the municipal judge on the bases of what appear to be: (a) that
municipal judge’s filing of charges that gave rise to Plaintiff’s
current prosecution; and/or (b) that municipal judge’s testimony
in Plaintiff’s currently ongoing criminal proceedings, the latter
line of claims is barred by the witness immunity, while the
former falls short for failure to establish that the judge acted
under color of state law when he filed his charges. See Jacobs
v. A Robert Depersia Agency, 2009 U.S. Dist. LEXIS 23122, at *9
(D.N.J. Mar. 20, 2009) (One’s act of commencing or participating
in a litigation “does not transform a private litigant into a
state actor”) (citing Drew v. Chase Manhattan Bank, N.A., 1998
U.S. Dist. LEXIS 11616 (S.D.N.Y. July 28, 1998) (quoting, in
turn, Goldberg v. Lynch, 1998 U.S. Dist. LEXIS 8906, at *6
(S.D.N.Y. June 18, 1998) for the proposition that, “[i]f it was
otherwise every state judgment could form the basis of a § 1983
action . . . . A party’s participation in a litigation is not
sufficient to cloak it with the authority of a state actor”).
28

municipal matter are also deficient on the already stated basis,
i.e., for failure to meet the color-of-law requirement.

And,

since: (a) Plaintiff can neither dissolve the aforesaid
immunities nor cure the lack-of-state-action deficiency by
repleading; and (b) he was availed to numerous opportunities to
amend his claims in Rodriguez-I, II, III, IV, V and VI, his
Rodriguez-IX complaint will be dismissed with prejudice.

See

Foman, 371 U.S. at 182; Alvin, 227 F.3d at 121.
4.

Rodriguez-X

Finally, in his Rodriguez-X complaint, Plaintiff asserted
that Judge DeLury violated his rights by presiding over his
currently ongoing prosecution, refusing Plaintiff’s requests for
taking judicial notices and directing Plaintiff’s confinement (or
declining his release on bail) on the basis of a certain state
statute.

Since all these acts are of undisputably judicial

nature, Plaintiff’s claims against Judge DeLury are barred by
judicial immunity.

By the same token, Plaintiff’s claims against

prosecutor McKelly based on McKelly’s ardent advancement of the
State’s position and proffering of a certain witness’ testimony
are barred by prosecutorial immunity.

Furthermore, Plaintiff’s

claims against a certain witness (based on her offering of a
testimony) are barred by witness immunity.19

19

The best this Court can surmise, it appears that the
witness whose testimony is challenged in Rodriguez-X is either a
29

Finally, under Younger, 401 U.S. 37, this Court must abstain
from any intervention in Plaintiff’s currently ongoing criminal
proceedings.20

And, to the extent Plaintiff seeks this Court’s

invalidation of Plaintiff’s prior convictions, these challenges
cannot be raised in a civil matter, see Preiser v. Rodriguez, 411
U.S. 475, and Plaintiff’s claims for damages based on those prior
convictions are premature under Heck, 512 U.S. 477.
Since Plaintiff cannot cure any of these deficiencies by
repleading, his Rodriguez-X complaint will also be dismissed with
prejudice.21

See

Foman, 371 U.S. at 182.

chambers- or a clerk’s office-staff providing services to the
municipal judge who presided over Plaintiff’s first criminal
prosecution and the following PCR action. It also appears that
this witness was present at the time when Plaintiff made the
statements that had been qualified as terroristic threats against
that municipal judge and, therefore, she offered her testimony as
to these statements for the purposes of judicial pre-trial
determinations made in Plaintiff’s current criminal prosecution.
20

See this Opinion, n.12 (detailing the elements of the
Younger abstention). All three Younger criteria are met here.
First, Plaintiff’s claim concerns the separate pending criminal
case. Second, based upon the fact that Plaintiff is attempting
to raise issues concerning the validity of the charges filed
against him, the proceeding clearly implicates important state
interests. Third, the State forum affords Plaintiff an adequate
opportunity to raise his federal law issues, such as his
substantive challenge, his speedy-trial claim and/or claim based
on Brady v. Maryland, 373 U.S. 83 (1963). Since Plaintiff did
not offer this Court any reason to find that he is precluded from
raising these claims in state fora, either at the Law Divisionor the Appellate Division-level, or before the Supreme Court of
New Jersey, this Court is constrained to abstain.
21

Plaintiff’s frivolous requests for this Court’s order
“voiding” either all New Jersey penal statutes or those that were
30

III. CONCLUSION
For the foregoing reasons, Plaintiff will be granted IFP
status for the purposes of his Rodriguez-VII, VIII, IX and X
actions, and the Clerk will be directed to file the complaints
submitted in these four matters.

These four complaints will be

dismissed; each such dismissal will be with prejudice.
The Court’s determination as to Plaintiff IFP status in
Rodriguez-I, II, III, IV, V and IV actions will remain reserved.
He will be allowed additional time to submit his amended
pleadings in those matters, provided that: (a) such pleadings
comply with the requirements of Rules 8, 15, 18 and 20; and (b)
raise claims that are not duplicative of those resolved in the
instant Opinion, i.e., in connection with the Court’s screening
of the complaints filed in Rodriguez-VII, VIII, IX and X.22
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB

implicated by Plaintiff’s past/current criminal prosecutions will
be dismissed.
22

In order to obtain IFP status for the purposes of his
Rodriguez-I action, Plaintiff must submit an affidavit averring,
under penalty of perjury, that Plaintiff was not placed in any
form of law enforcement custody at the time he submitted his
Rodriguez-I complaint. The Court takes this opportunity to
stress that, for the purposes of the Court’s IFP inquiry
conducted in connection with Rodriguez-I, the particular facility
where Plaintiff was housed at that time, is of no relevance.
31

United States District Judge
Dated: December 11, 2013

32