REARDON v. STATE OF NEW JERSEY et al

Filing 20

OPINION FILED. Signed by Judge Noel L. Hillman on 6/27/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN E. REARDON,
Plaintiff,
v.
STATE OF NEW JERSEY, et al.,
Defendants.

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Civ. No. 13-5363 (NLH)

OPINION

Appearances:
JOHN E. REARDON
1 JOANS LANE
BERLIN, NJ 08009
Pro Se Plaintiff
BRIAN P. WILSON
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
DIVISION OF LAW
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
Attorney for Defendants State of New Jersey, the Hon. Victor
Ashrafi, J.A.D., the Hon. Margaret M. Hayden, J.A.D., the Hon.
Edith K. Payne, J.S.C., the Hon. Anthony M. Pugliese, J.S.C. and
the Hon. Ronald J. Freeman, J.S.C. (retired)
HILLMAN, District Judge

Before the Court is a motion to dismiss filed by
defendants the State of New Jersey, the Hon. Victor Ashrafi,
J.A.D., the Hon. Margaret M. Hayden, J.A.D., the Hon. Edith K.
Payne, J.S.C., the Hon. Anthony M. Pugliese, J.S.C. and the Hon.
Ronald J. Freeman, J.S.C. (retired) (collectively “State
defendants”).

Also before the Court is plaintiff’s motion for

leave to amend his complaint.

For the reasons that follow, the

defendants’ motion will be granted and the plaintiff’s motion will
be denied.
I.

FACUTUAL AND PROCEDURAL BACKGROUND
Plaintiff was convicted in 1992 in the State of New

Jersey for (1) third-degree possession of a destructive device
in violation of N.J. STAT. ANN. 2C:39-3(a); (2) second-degree
possession of explosive material with intent to use it against
another in violation of N.J. STAT. ANN. 2C:39-4(b); and (3)
second-degree possession of a destructive device with the intent
to use it against another in violation of N.J. STAT. ANN. 2C:394(c).
Following his 1992 conviction, plaintiff appealed and
Judges Payne and Hayden of the Superior Court of New Jersey,
Appellate Division, affirmed.

See State v. Reardon, 2012 WL

10800, at *1-2 (N.J.Super.Ct.App. Div. Jan. 4, 2012).

On

October 1, 2009, plaintiff filed a petition for post-conviction
relief in the New Jersey Superior Court.

Id.

By Order dated

August 20, 2010, Judge Pugliese denied plaintiff’s motion.
On January 4, 2012, the Superior Court, Appellate Division,
affirmed, on grounds that plaintiff’s petition was untimely,
that his arguments were barred because they were previously
litigated and that his arguments lacked merit.

2

Id. at *3-4.

Id.

Plaintiff then filed a complaint 1 before this Court
alleging that his 1992 conviction and subsequent denial of his
post-conviction relief (PCR) petition were unconstitutional.
Plaintiff states that he is not asking this Court “to set aside
his conviction” but rather he asks the Court to find his
conviction unconstitutional and enjoin the enforcement of the
conviction.
The State defendants move to dismiss plaintiff’s
complaint.
II.

In response, plaintiff moves to amend his complaint.

STANDARDS FOR MOTION TO DISMISS PURSUANT TO FED. R.
CIV. P. 12(b)(1) and (6)
The State defendants argue that plaintiff’s claims are

absolutely barred by the doctrine of Eleventh Amendment sovereign
immunity.

As plead, Eleventh Amendment immunity is a challenge

to this Court’s subject matter jurisdiction and, therefore, is
determined pursuant to Fed. R. Civ. P. 12(b)(1).

Gould Elecs.,

Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
12(b)(1) motions are either facial or factual challenges.
United States, 535 F.3d 132, 140 (3d Cir. 2008).

Rule
CNA v.

A facial attack

concerns the sufficiency of the pleadings, whereas a factual

1

Plaintiff filed his original complaint on September 9, 2013,
and served it on the State defendants on September 26, 2013. He
filed an “amended complaint” as a matter of course on October 8,
2013, pursuant to Fed. R Civ. P. 15(a)(1)(A). The amended
complaint is not a fully amended complaint, but rather, is a
recitation of some additional allegations. The Court will treat
the complaint and amended complaint as one complaint and will
refer to both as simply the complaint.
3

attack is a dispute over the existence of certain jurisdictional
facts alleged by the plaintiff.

Id. (citing United States ex rel.

Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.
2007)).
In deciding a motion that attacks the complaint on its
face, the court must accept the allegations in the complaint as
true.

Mortensen, 549 F.2d at 891; Gould Elecs., 220 F.3d at 176

(“In reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein and
attached thereto, in the light most favorable to the plaintiff.”)
If the motion attacks the facts supporting jurisdiction,
“no presumptive truthfulness attaches to plaintiff's allegations,
and the existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.”

Mortensen v. First Federal Sav. and Loan

Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

The plaintiff will have

the burden of proof that jurisdiction does in fact exist. Id.
Here, the State defendants are making a facial attack
that plaintiff’s claims are barred by sovereign immunity and,
therefore, the Court accepts the allegations in plaintiff’s
complaint as true.
Alternatively, the State defendants argue that
plaintiff’s claims are barred under the doctrine of judicial
immunity pursuant to Fed. R. Civ. P. 12(b)(6).
4

See Melo v. Hafer,

13 F.3d 736, 744 (3d Cir. 1994) (If a defendant believes facts
alleged entitle him to absolute judicial immunity, he may file a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)).
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted pursuant
to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.
347, 351 (3d Cir. 2005).

Evancho v. Fisher, 423 F.3d

It is well settled that a pleading is

sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

Under the liberal federal pleading rules, it is

not necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

Bogosian v.
However,

“[a]lthough the Federal Rules of Civil Procedure do not require a
claimant to set forth an intricately detailed description of the
asserted basis for relief, they do require that the pleadings give
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”

Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation
omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
5

claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’ .
. . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for the
‘no set of facts’ standard that applied to federal complaints
before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit
has instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the factual and legal elements of a claim

should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129 S.

Second, a district court must then determine

whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a “‘plausible claim for relief.’”
(quoting Iqbal, 129 S. Ct. at 1950).

Id.

A complaint must do more

than allege the plaintiff's entitlement to relief.

Id.; see also

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(stating that the “Supreme Court's Twombly formulation of the
pleading standard can be summed up thus: ‘stating . . . a claim
requires a complaint with enough factual matter (taken as true) to
6

suggest’ the required element.

This ‘does not impose a

probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.

In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d
Cir. 1997).

The defendant bears the burden of showing that no

claim has been presented.

Hedges v. U.S., 404 F.3d 744, 750 (3d

Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d
1406, 1409 (3d Cir. 1991)).
III. DISCUSSION
Even though a pro se complaint must be construed
liberally, 2 plaintiff's complaint must be dismissed on grounds of
sovereign immunity and judicial immunity.

As defendants are

immune from suit, amendment of plaintiff’s complaint would be
futile.

3

2

“[A] pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Estelle v. Gamble, 429 U.S. 97, 107 (1976).
3

Alternatively, the State defendants argue that plaintiff’s
claims are barred by the Heck and Rooker-Feldman doctrines, as
well as res judicata and collateral estoppel. Also, the State
defendants argue they are not persons amenable to suit under 42
U.S.C. § 1983 and that plaintiff fails to provide factual
allegations that support his conclusion that the State
defendants violated his rights. To the extent plaintiff seeks
to challenge the ultimate judgment of his state court criminal
conviction, the Rooker-Feldman doctrine bars his claim. See
7

A. Claims Against State of New Jersey Must be Dismissed
The Eleventh Amendment to the United States Constitution
provides that, “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of another
State, or by Citizens or Subjects of any Foreign State.”
Const. amend. XI.

U.S.

“[A]n unconsenting State also is immune from

suits by its own citizens.”

Tennessee Student Assistance Corp. v.

Hood, 541 U.S. 440, 446, 124 S.Ct. 1905 (2004).

Prater v. City of Philadelphia Family Court, --- Fed.Appx. ----,
2014 WL 2700095, at *3 (3d Cir. June 16, 2014); Taliaferro v.
Darby Tp. Zoning Bd., 458 F.3d 181, 193 (3d Cir. 2006) (Once a
state court proceeding has concluded, the Rooker–Feldman
abstention doctrine applies when the relief requested in the
federal court would effectively reverse a state court decision
or void its ruling); see also, Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005) (The application of the
Rooker–Feldman doctrine is necessarily limited to “cases brought
by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.”). In addition, plaintiff’s § 1983 claims
would also be barred by the Heck doctrine. Heck v. Humphrey,
512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)
(“when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate the conviction or
sentence has already been invalidated.”). Plaintiff has not
demonstrated that his conviction has been invalidated. To the
contrary, it was affirmed on appeal and his post-conviction
relief petition was denied in the state court proceedings.
Because plaintiff’s claims are barred by the doctrines of
sovereign immunity and judicial immunity, and alternatively by
the Rooker-Feldman and Heck doctrines, the Court will not
address the remainder of defendants’ alternative arguments.
8

As a general proposition, a suit by private parties
seeking to impose a liability which must be paid from public funds
in a state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute.

See, e.g., Edelman v. Jordan,

415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The

Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the type of
relief sought.

See Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
(citing Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78
L.Ed. 145 (1933)); Accord Quern v. Jordan, 440 U.S. 332, 342, 99
S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979) (holding that 42 U.S.C. §
1983 does not override States' Eleventh Amendment immunity).
The State of New Jersey has not waived its immunity and
this Court lacks subject matter jurisdiction over plaintiff’s
claims.

Accordingly, the State of New Jersey is immune from suit

and will be dismissed.

B. Claims Against State Court Judges Must be Dismissed
Plaintiff’s claims against defendants the Hon. Victor
Ashrafi, J.A.D., the Hon. Margaret M. Hayden, J.A.D., the Hon.
Edith K. Payne, J.S.C., the Hon. Anthony M. Pugliese, J.S.C. and
the Hon. Ronald J. Freeman, J.S.C. (retired) (“State court
judges”) are also barred under the doctrines of sovereign immunity
9

and judicial immunity.
As officers of the State of New Jersey, the State court
judges enjoy sovereign immunity.

See Betts v. New Castle Youth

Development Center, 621 F.3d 249, 254 (3d Cir. 2010) (“Individual
state employees sued in their official capacity are also entitled
to Eleventh Amendment immunity because ‘official-capacity suits
generally represent only another way of pleading an action’
against the state.”)(citing Hafer v. Melo, 502 U.S. 21, 25, 112
S.Ct. 358, 116 L.Ed.2d 301 (1991)).
The Eleventh Amendment, however, does permit suits for
prospective injunctive relief against state officials.

See Ex

parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Plaintiffs may bring suit against state officers, but their
remedies are limited to those that are “designed to end a
continuing violation of federal law.”

Green v. Mansour, 474 U.S.

64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985).

Plaintiffs may not

be awarded damages or other forms of retroactive relief.
Pennhurst, 465 U.S. at 103.
In his complaint, plaintiff asks this Court to issue a
“declaratory order that the state [] violated his rights” and to
“issue an injunction barring the State and Federal Governments
from using these convictions against him for any right, privilege
or immunity that the plaintiff would be entitled to absent the
conviction.”

Plaintiff’s request for declaratory or injunctive
10

relief is not the kind that is permitted under the Eleventh
Amendment exception.

Plaintiff is not asking for prospective

relief, but for this Court to overturn his state court conviction
as unconstitutional.

Accordingly, the remedy plaintiff seeks

against the State defendants cannot properly be characterized as a
claim for prospective relief “designed to end a continuing
violation of federal law.”

Green, 474 U.S. at 68, 106 S.Ct. 423.

Accordingly, Plaintiff’s request for injunctive relief shall also
be dismissed. 4
Additionally, under the doctrine of judicial immunity, a
judge is entitled to absolute immunity from civil suits for
actions arising from his or her judicial actions.

See Mireles v.

Waco, 502 U.S. 9, 10-11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)
(explaining that “judicial immunity is an immunity from suit, not
just from ultimate assessment of damages,”); Pierson v. Ray, 386
U.S. 547, 553–554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (“Few
doctrines were more solidly established at common law than the
immunity of judges from liability for damages for acts committed
within their judicial jurisdiction ....”).

4

The immunity is

The Federal Courts Improvement Act of 1996 amended 42 U.S.C. §
1983 to provide that “in any action brought against a judicial
officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983; see also Azubuko v. Royal, 443
F.3d 302, 303–04 (3d Cir. 2006).
11

absolute and cannot be overcome by allegations of bad faith or
malice.
immunity:

See id. at 11. There are two exceptions for judicial
(1) for non-judicial actions (actions not taken in the

judge’s judicial capacity); and (2) for actions, though judicial
in nature, which are taken in the complete absence of
jurisdiction.

See id. at 11-12.

Whether an act by a judge is a

judicial one relates “to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349,
362 (1978); see also Gallas v. Supreme Court of Pa., 211 F.3d 760
(3d Cir. 2000).
Plaintiff’s allegations are based on his state court
criminal proceeding and conviction.

Plaintiff alleges that his

conviction, and the denial of his PCR petition, violated his
constitutional rights.

Plaintiff’s claims against the State court

judges all arise from their judicial actions and, therefore, the
State court judges are entitled to absolute judicial immunity.
Moreover, plaintiff fails to raise any allegation that
would provide an exception to the State court judges’ judicial
immunity.

Plaintiff makes no claim regarding any acts by the

State court judges that could plausibly be construed as “nonjudicial” acts.

Likewise, plaintiff has not alleged any acts that

could be construed to be “in complete absence of all
12

jurisdiction.”
Therefore, the State court judges are immune from suit.
Plaintiff’s claims against the State court judge defendants will
be dismissed.
C. U.S. Government Must be Dismissed
The Court notes that plaintiff also named the U.S.
Government as a defendant.

Plaintiff makes no allegations against

the U.S. Government in his complaint or proposed amended
complaint.

Accordingly, this defendant must be dismissed.

See

Salesky v. Balicki, No. 10-5158, 2013 WL 3200722, at *2 (D.N.J.
June 24, 2013) (finding no allegations of any wrongful conduct
with respect to defendant and dismissing § 1983 claims).

Further,

even though plaintiff filed a proof of service stating that he
served the summons on Eric Holder, he does not specify the date it
was allegedly served.

Thus, plaintiff has not presented

sufficient proof of service that he complied with Fed.R.Civ.P.
4(i) or (m).

The U.S. Government has not filed an appearance or

responsive pleading.

Since plaintiff has not prosecuted his case

against the U.S. Government, the U.S. Government is also subject
to dismissal pursuant to Local Rule 41.1(a).
D. Amendment to the Complaint Would be Futile
Generally, the Federal Rules of Civil Procedure
encourage and provide for a liberal policy with regard to the
amendment of pleadings.

Pursuant to Federal Rule of Civil
13

Procedure 15(a)(2), "a party may amend its pleading only with the
opposing party's written consent or the court's leave."
Civ. P. 15(a)(2).

Fed. R.

Rule 15(a)(2) further "requires that leave to

amend the pleadings be granted freely 'when justice so requires.'"
Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (citing Fed. R.
Civ. P. 15(a)) ("We have held that motions to amend pleadings
should be liberally granted.").

In Foman v. Davis, 371 U.S. 178,

182 (1962), the Supreme Court articulated the policy of "freely"
granting leave to amend.

See also Shane v. Fauver, 213 F.3d 113,

115 (3d Cir. 2000).
"[A]bsent undue or substantial prejudice, an amendment
should be allowed under Rule 15(a) unless denial [can] be grounded
in bad faith or dilatory motive, truly undue or unexplained delay,
repeated failure to cure deficiency by amendments previously
allowed or futility of amendment."

Long v. Wilson, 393 F.3d 390,

400 (3d Cir. 2004) (internal quotations, citations, and emphasis
omitted); see also Haynes v. Moore, 405 F. App'x 562, 564 (3d Cir.
2011) (noting that even though leave to amend under Rule 15 should
be freely given, "a district court may exercise its discretion and
deny leave to amend on the basis of undue delay, bad faith,
dilatory motive, prejudice, or futility.").
“The standard for assessing futility [of amendment] is
the 'same standard of legal sufficiency as applies under [Federal]
Rule [of Civil Procedure] 12(b)(6).'”
14

Great W. Mining & Mineral

Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)
(citing Shane v. Fauver, 213 F.3d 113, 115 (3d. Cir. 2000)); see
also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (“An
amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief
could be granted.”).
Plaintiff alleges in his proposed amended complaint that
Judge Steinberg erroneously granted a search warrant; that Judges
Steinberg and Greene failed to recuse themselves; that Judge
Pugliese denied his PCR motion for lack jurisdiction; that Judge
Freeman entered a “false” order; that Judges Sharafi, Payne and
Hayden accepted the “false” lower state court record and denied
his appeal; and that the Judges entered “false” orders denying
plaintiff’s relief.

Plaintiff’s allegations all concern the State

court judges’ judicial acts.
immunity.

As such, they are entitled to

Allowing plaintiff to amend the allegations in his

complaint against the State defendants would be futile.

See

Shearin v. Delaware, No. 02-276, 2003 WL 1697540, at *7 (D.Del.
Mar. 21, 2003) (“[I]t is clear that allowing Plaintiff to amend
her complaint in this manner would be futile because judges and
judicial officers are entitled to absolute immunity from suit for
damages under 42 U.S.C. § 1983) (citations omitted).
Additionally, plaintiff does not make any specific
allegations against the U.S. Government in his amended complaint.
15

Therefore, allowing plaintiff to file the amended complaint would
be futile because there are no allegations that could support a
claim against this defendant.

Jablonski v. Pan American World

Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (An amendment to a
complaint is futile “if the amended complaint cannot withstand a
motion to dismiss.”).

In addition, plaintiff has presented no

claim in his amended complaint that could overcome the federal
government’s sovereign immunity.

See Azubuko v. Saris, 167

Fed.Appx. 317, 319 (3d Cir. 2006) (“Absent a waiver, sovereign
immunity shields the Federal Government ... from suit.”) (citing
FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308
(1994)).
Therefore, any amendment to plaintiff’s complaint
against the U.S. Government would be futile.
IV.

CONCLUSION
The State defendants’ motion to dismiss will be granted

and the State defendants shall be dismissed.
shall be dismissed as a defendant.

The U.S. Government

Plaintiff’s motion for leave

to amend his complaint shall be denied on grounds of futility.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey
Dated:

June 27, 2014

16