DIPIETRO v. STATE OF NEW JERSEY et al

Filing 25

OPINION. Signed by Judge Noel L. Hillman on 9/3/2014. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PETER DIPIETRO

Civ. No. 1:14-352 (NLH/AMD)

Plaintiff,
OPINION

v.
STATE OF NEW JERSEY et. al,
Defendants.

Appearances:
Peter DiPietro
495 South Bluebell Road
Vineland, New Jersey 08360
Pro se plaintiff.

Daniel James Kelly
Hughes Justice Complex
25 Market Street
P.O. Box 117
Trenton, New Jersey 08625
Counsel for Defendants State of New Jersey and Thomas M. North
Matthew Paul Madden
Madden & Madden
108 Kings Highway East, Suite 200
P.O. Box 210
Haddonfield, New Jersey 08033
Counsel for Defendants Municipal Township of Franklinville,
Franklinville Building Code Enforcement, Steven Rickershauser,
and Ed Smith

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John C. Eastlack, Jr.
Weir & Partners LLP
The Liberty View Building
457 Haddonfield Road, Suite 310
Cherry Hill, New Jersey 08002
Counsel for Defendants Franklin Joint Municipal Court, John Doe,
and Joan Sorbello Adams

HILLMAN, District Judge
Plaintiff, who is proceeding pro se, filed this action
against various municipal entities and public officials claiming
they violated his constitutional, statutory, and common law
rights by participating in a scheme to illegally enforce New
Jersey’s Uniform Construction Code, N.J. Admin. Code §§ 5:23-1.1
to -12A.6, (“Building Code”) against him.

Before the Court are

several related motions including: Plaintiff’s Motion [Doc. No.
6] for Recusal; Motions [Doc. No. 7, 9, 10] to Dismiss
Plaintiff’s claims pursuant to Federal Rule of Civil Procedure
12(b)(6) made by all Defendants except Elk Joint Municipal
Court; and Plaintiff’s Motion [Doc. No. 12] for Summary
Judgment.
For the reasons stated below, Plaintiff’s Motion for
Recusal will be denied, Defendants’ motions to dismiss will be
granted, and Plaintiff’s Motion for Summary Judgment will be
denied as moot as it relates to the moving defendants and denied
without prejudice as against Elk Joint Municipal Court pending
Plaintiff’s response to an Order to Show Cause.
2

I.

Jurisdiction
The Court exercises jurisdiction pursuant to 28 U.S.C. §

1331 because some of Plaintiff’s claims arise under the federal
laws of the United States.

Specifically, Plaintiff alleges

civil rights violations pursuant to 42 U.S.C. §§ 1983, 1985, and
1986, as well as violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68.

The

Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367
over Plaintiff’s related state law claims.
II.

Background
Plaintiff alleges that, on or about February 7, 2012, he

received a “Notice of Violation and Order to Terminate” and a
“Notice and Order of Penalty” from Defendant Steven
Rickershauser, the Franklin Township Construction Official,
stating that Plaintiff was in violation of the Building Code.
(Pl.’s Compl. [Doc. No. 1-1] ¶ 1.)

Plaintiff claims

Rickershauser falsified the violation notice since it was issued
pursuant to an inspection on February 3, 2012 which never took
place.

(Id. ¶¶ 1-2.)

The violation notice also threatened

fines of $2,000 per week which, according to Plaintiff, is four
times the legal limit set by the Building Code.

(Id. ¶ 1.)

The Complaint goes on to allege that, on or about March 12,
2012, Plaintiff received a complaint and summons from the
Franklin Joint Municipal Court, based on the falsified violation
3

notice, for violation of Section 2.31(b)(4) 1 of the Building
Code.

(Id. ¶ 3.)

Plaintiff claims he filed a motion

challenging the constitutionality of “the statute,” but
Defendant Judge Joan Sorbello Adams “refused to hear” the motion
and transferred the case to the Elk Joint Municipal court.
¶¶ 4-6.)

(Id.

Plaintiff further alleges that, at a hearing before

Judge Adams, Defendants Steven Rickershauser and John Doe, an
unknown prosecutor, concealed the illegal nature of the
penalties as well as the fact that Rickershauser falsified the
violation notice.

(Id. ¶ 8.)

Plaintiff also claims that after

his case was transferred he refiled his motion in the new forum,
but Defendant Judge Thomas North also “refused to hear” the
motion and issued a warrant for Plaintiff’s arrest.

(Id. ¶ 7.)

Plaintiff alleges that Defendants Rickershauser and Ed
Smith conspired to illegally withhold Plaintiff’s certificate of
occupancy because an inspection of Plaintiff’s property in 2007
revealed no violations of the Building Code.

(Id. ¶ 10.)

Plaintiff also claims that Defendants Rickershauser and Smith
concealed and withheld documents that relate to his building
inspections and violations from him.
2.)

(Id. Statement of Facts ¶

Finally, Plaintiff alleges that all Defendants conspired

1

N.J. Admin. Code § 5:23-2.31(b)(4) states in relevant part: “in
the case of a . . . failure to . . . request required
inspections . . . an order to pay a penalty shall be issued
immediately upon the discovery of the violation.”
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with one another to commit and facilitate the allegedly illegal
and malicious actions.

(Id. Statement of Facts ¶¶ 1-2.)

Plaintiff asserted several counts against Defendants for
state law violations and civil rights violations pursuant to 42
U.S.C. §§ 1983, 1985, and 1986.

Plaintiff also included a count

against all Defendants for violation of the RICO act. 2
III. Motion for Recusal
Plaintiff filed a motion for recusal pursuant to 28 U.S.C.
§ 455.

He challenges this Court’s impartiality on the grounds

that he filed a “Verified Criminal Complaint” accusing the
undersigned of “TREASON against the United States of America”
and violation of 18 U.S.C. § 4.

(Pl.’s Mot. for Recusal [Doc.

No. 6] 2.)
Title 28 U.S.C. § 455(a) provides, “[a]ny justice, judge or
magistrate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be
questioned.”

The test for recusal under 28 U.S.C. § 455(a) is

whether “a reasonable man knowing all the circumstances would
harbor doubts concerning the judge’s impartiality.”

2

Blanche Rd.

Although Plaintiff did not include a specific count on the
issue, he alleged in his background section that Defendants
violated 18 U.S.C. § 4 – Misprison of Felony. (Pl.’s Compl. ¶
1.) However, Plaintiff cannot assert a claim under that statute
because private citizens cannot file criminal complaints. See
Wheeler v. Ulisny, 482 F. App’x 665 (3d Cir. 2012) (citing Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
5

Corp. v. Bensalem Twp., 57 F.3d 253, 266 (3d Cir. 1995) (quoting
United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983)).
After reading Plaintiff’s moving papers the Court is
convinced that no reasonable person with knowledge of all the
circumstances would harbor any doubts as to this Court’s
impartiality.

What Plaintiff refers to as a “Verified Criminal

Complaint” was in fact nothing more than a letter he sent to the
FBI, the United States Attorney’s office, and the Camden County
Prosecutor’s office.
6-1].)

(Pl.’s Mot. for Recusal, Ex. 1 [Doc. No.

The letter accuses the undersigned of dismissing

Plaintiff’s cases in order to conceal criminal activity, but it
offers no support of that claim beyond Plaintiff’s obvious
displeasure with this Court’s decisions.

(Id.)

Simply put,

writing a letter that expresses disagreement with a judge’s
decisions and makes unfounded and conclusory assertions of
criminal conduct would not cause a reasonable person to doubt
that judge’s impartiality and therefore does not warrant recusal
under 28 U.S.C. § 455.

To hold otherwise would allow any

disappointed litigant to switch forums by simply making specious
allegations.
IV. Motion to Dismiss Pursuant to Rule 12(b)(6)
All of the Defendants except Elk Joint Municipal Court
moved to dismiss Plaintiff’s claims on various grounds including
immunity; failure to identify “persons” capable of being sued
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under 42 U.S.C. §§ 1983, 1985, and 1986; failure to file proper
notice of state law claims under the New Jersey Tort Claims Act;
and several other grounds.

However, the Court need not address

most of the arguments made by the Defendants.

All of

Plaintiff’s federal claims must be dismissed because the
Complaint does not plead facts sufficient to raise a plausible
right to relief under federal law.

Furthermore, Plaintiff’s

state law claims will be dismissed because it would be improper
for the Court to exercise supplemental jurisdiction after all
federal claims have been dismissed.
A. Standard for Motion to Dismiss Under Rule 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 Federal Rule of Civil Procedure 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.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

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.”

Fed. R. Civ. P. 8(a)(2).

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.
F.2d 434, 446 (3d Cir. 1977).

Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
7

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 Cnty. 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 claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (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.
S. Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
8

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

A complaint must do

more than allege the plaintiff's entitlement to relief.

Id.;

see also Phillips v. Cnty. 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 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)).
Finally, a court in reviewing a Rule 12(b)(6) motion may
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
9

Additionally, a court may

consider “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.

Fed. R. Civ. P. 12(d).

B. Plaintiff Has Not Raised a Plausible Federal Claim
Plaintiff has attempted to bring federal civil rights
claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986.

He also

alleged that Defendants’ actions violated the RICO act.

To

state a claim under 42 U.S.C. § 1983, a plaintiff must allege a
violation of his civil rights.

28 U.S.C. § 1983; see Piecknick

v. Commonwealth of Pa., 36 F.3d 1250, 1255-56 (3d Cir. 1994).
To state a claim under § 1985, a plaintiff must allege a
conspiracy to: (1) prevent another from accepting or carrying
out their duties as an officer of the United States; (2)
interfere with a party, witness, or juror in a lawsuit; or (3)
deprive a person of the equal protection of the laws.

28 U.S.C.

§ 1985; see El-Hewie v. Bergen County, 348 F. App’x 790, 795-96
(3d Cir. 2009) (citing Griffin v. Breckenridge, 403 U.S. 88,
102-03 (1971)).

Similarly, a claim under § 1986 must be based

on a valid § 1985 conspiracy.

Rogin v. Bensalem Twp., 616 F.2d
10

680, 696 (3d Cir. 1980).

A valid RICO claim must be based on

one of the predicate criminal offenses listed in 18 U.S.C. §
1962, or a conspiracy to commit such an offense.

18 U.S.C. §§

1962, 1964(c).
After stripping away the bald assertions and legal
conclusions in the Complaint, Plaintiff has not pled facts
sufficient to raise a plausible claim under any of these federal
statutes.

This is particularly clear when the Complaint is read

in conjunction with the documents on which it is based.
The core of Plaintiff’s Complaint is his claim that
Defendant Rickershauser fabricated the violation notice, a
conclusion Plaintiff draws from his belief that the notice was
based on an inspection that never occurred.

(Pl.’s Compl. ¶ 1.)

The violation notice form does have a space to fill in the “date
of inspection,” and on Plaintiff’s violation notice that space
was filled in with “2/3/2012.”
[Doc. No. 7-5].)

(Def.’s Mot. to Dismiss, Ex. B

However, the notice explained Plaintiff’s

violation as follows: “[t]ake NOTICE that you have been found to
be in violation of the State Uniform Construction Code Act and
Regulation promulgated thereunder in that: TEMPORARY CERTIFICATE
OF OCCUPANCY EXPIRED . . . In violation of N.J.A.C. 5:232.31(b)4 FAILURE TO OBTAIN THE REQUIRED INSPECTIONS.”

Thus, it

is quite clear that the violation notice was based on
Plaintiff’s failure to obtain an inspection, not on issues
11

discovered during an inspection.

Without more, the simple fact

that the inspection-date field was filled out does not raise a
plausible inference that Rickershauser falsified the violation
notice in an attempt to violate Plaintiff’s civil rights.
Similarly, Plaintiff’s conclusion that Rickershauser and
Smith conspired to illegally withhold his certificate of
occupancy does not plausibly follow from his factual basis for
reaching that conclusion - that an inspection of his property in
2007 showed no violations.

The violation notice was ostensibly

based on the expiration of a temporary certificate of occupancy,
suggesting that Plaintiff needed to have his property inspected
again.

Thus, the fact that Plaintiff had his property inspected

in 2007 does not plausibly suggest a conspiracy to withhold a
certificate of occupancy.
Plaintiff further alleges that the violation notice’s
threat of fines of $2,000 per week was illegal because it was
four times the $250 limit set by Section 2.31(b)(2) of the
Building Code. 3

However, the plain text of Section 2.31(b)(2) 4

3

Plaintiff’s Complaint actually refers to limits in Section
2.31(b)(1), but that section makes no reference to any limit on
fines. However, the Court will treat Plaintiff’s reference to
Section 2.31(b)(1) as a typographical error since Section
2.31(b)(2) sets a $250 limit on certain fines.
4 Section 2.31(b)(2) states: “Anyone who knowingly refuses entry
or access to an inspector lawfully authorized to inspect any
premises, building or structure pursuant to the act or the
regulations, or who unreasonably interferes with such an
inspection, shall be subject to a fine of not more than
12

makes clear that the $250 limit applies only to fines for
refusing entry to a building inspector or unreasonably
interfering with a building inspection.
5:23-2.31(b)(2).

N.J. Admin. Code §

Since neither of those situations are even

purportedly at issue here, the $250 limit is inapplicable.
Furthermore, since Plaintiff’s allegations of a falsified
violation notice and excessive fines are implausible, any
derivative allegations – such as Plaintiff’s contention that
Defendants Rickershauser and Doe concealed the illegalities of
the violation notice from the court – are equally implausible.
The remainder of Plaintiff’s Complaint is a series of
disjointed, conclusory allegations, none of which add up to a
plausible claim under the federal statutes cited by Plaintiff.
For example, Plaintiff’s assertions that Judges Adams and North
“refused to hear” his motions do not suggest a civil rights
violation or criminal activity.

If the court improperly denied

his motions, that issue should be raised in an appeal from those
decisions, not in a civil rights or RICO action.
To summarize, Plaintiff’s claims of a conspiracy to
illegally enforce the New Jersey Building Code against him are
completely implausible.

When read in light of the documents on

which they are based, Plaintiff’s allegations of wrongdoing are

$250.00.”

N.J. Admin. Code § 5:23-2.31(b)(2).
13

nothing more than bald assertions and legal conclusions.
Without these bald assertions and legal conclusions, Plaintiff’s
Complaint does not allege anything beyond his being subjected to
ordinary enforcement proceedings for failing to obtain an
inspection when his temporary certificate of occupancy expired.
Consequently, Plaintiff’s federal claims must be dismissed.
C. Plaintiff’s State Law Claims Will Be Dismissed
Having dismissed all of Plaintiff’s federal claims, the
Court must decide what to do with Plaintiff’s state law claims.
When a district court dismisses all claims over which it has
original jurisdiction before trial, it cannot continue to
exercise supplemental jurisdiction over state law claims unless
“considerations of judicial economy, convenience, and fairness
to the parties provide an affirmative justification for doing
so.”

Bright v. Westmoreland Cnty., 443 F.3d 276, 286 (3d Cir.

2006) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995)); see also, United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966); Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 351-52 (1988).
Soon after this case was removed to federal court, the
parties filed the motions presently at issue.

Other than those

motions, the case has made little to no progress.

Consequently,

given the early stage of this litigation, the considerations
listed above do not overcome the presumption against retaining
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jurisdiction.

Therefore, the Court will dismiss Plaintiff’s

state law claims without prejudice since all of his federal
claims must be dismissed.
Finally, since all of Plaintiff’s claims will be dismissed,
his Motion for Summary Judgment must be denied as moot with
respect to the moving defendants.
V.

Leave to Amend and Sua Sponte Dismissal
Since Defendant Elk Joint Municipal Court did not move for

dismissal, the Court cannot immediately dismiss Plaintiff’s
claims against it, even though the reasoning above applies with
equal force.

A district court may sua sponte dismiss a

complaint under Rule 12(b)(6), but only if the plaintiff is
afforded an opportunity to respond.

Bethea v. Nation of Islam,

248 Fed. App’x 331, 333 (3d Cir. 2007) (per curiam) (citing
Oatess v. Sobolevitch, 914 F.2d 428, 430 n. 5 (3d Cir. 1990)).
Consequently, the Court will give Plaintiff thirty days to show
cause why his claims against Defendant Elk Joint Municipal Court
should not be dismissed for the reasons discussed above.
Additionally, the Court must afford Plaintiff time to amend
the civil rights claims in his complaint if he so wishes.

See

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007).

15

V.

Conclusion
For the reasons set forth above, Plaintiff’s Motion [Doc.

No. 6] for recusal will be denied; Defendants’ Motions [Doc. No.
7, 9, 10] to Dismiss will be granted; and Plaintiff’s Motion
[Doc. No. 12] for Summary Judgment will be denied as moot with
respect to all Defendants except Elk Joint Municipal Court.
With respect to Elk Joint Municipal Court, if Plaintiff
chooses to rely on his original complaint, he will have thirty
days to show cause why his claims against Defendant Elk Joint
Municipal Court should not be dismissed for the reasons
discussed above.

In the alternative, 5 Plaintiff is granted leave

to file an Amended Complaint if he wishes to address any or all
of the pleading deficiencies noted above.

Date: September 3, 2014
At Camden, New Jersey

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

5

The filing of an amended complaint will moot the Order to Show
Cause since the filing of the amended complaint will supersede
the original complaint.
16