ARISTEO v. RAINES et al
Filing
6
OPINION FILED. Signed by Judge Renee Marie Bumb on 2/3/16. (js)
[Dkt. Ent. 5]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BRUCE ARISTEO,
Plaintiff,
Civil No. 15-4115 (RMB/JS)
OPINION
v.
JODY RAINES, et al.,
Defendants.
Plaintiff Bruce Aristeo (the “Plaintiff”), an experienced
pro se litigant in this Court,1 initiated this civil action on
June 3, 2015.
[Dkt. No. 1 (the “Complaint”).]
This Court
granted Plaintiff in forma pauperis status to proceed without
prepaying fees or costs on June 18, 2015 and directed the
Complaint be filed, but reserved on whether summons shall issue
until the Court concluded screening the Complaint pursuant to 28
U.S.C. § 1915(e)(2).
[Dkt. No. 2.]
Plaintiff amended the Complaint.
Complaint”).]
On January 21, 2016,
[Dkt. No. 5 (the “Amended
The Amended Complaint involved substantially the
same claims and added four additional defendants.
The Court now
In addition to the three actions discussed below,
Plaintiff has also appeared pro se in this district in other
cases. Aristeo v. Raines, Civ. No. 11-4247 (July 22, 2011);
Aristeo v. New Jersey, Civ. No. 15-3350 (May 14, 2015); New
Jersey v. Aristeo, Civ. No. 14-7911 (Dec. 22, 2014).
1
1
screens the Amended Complaint pursuant to 28 U.S.C. §
1915(e)(2).
I.
BACKGROUND
Plaintiff’s Amended Complaint asserts a litany of causes of
action.
Although Plaintiff leaves out many key facts that might
tie a cohesive narrative together with regard to his
allegations, the Court can discern that his causes of action
trace back to a dispute between Defendant Jody Raines, who
Plaintiff alleges was both his employer and a romantic interest,
and himself.
After the personal and business relationship
soured and a subsequent restraining order was issued against
Plaintiff, he encountered a series of business and law
enforcement entanglements.
Specifically, Plaintiff alleges Ms.
Raines and dozens of other individuals engaged in conduct
ranging from copyright infringement to violation of his
constitutional rights under the Eighth Amendment.
The Court
explains the relevant alleged facts of each cause of action as
it addresses them in turn below.
It is worth noting at the outset that this is not the first
time Plaintiff has pursued legal action on this set of
allegations.
In three other actions involving substantially
similar facts and many of the same defendants, Plaintiff filed
extremely voluminous complaints, proceeding in forma pauperis in
each action.
See Aristeo v. Helmer, Civ. No. 15-1252 (D.N.J.
2
Feb. 17, 2015); Aristeo v. Raines, Civ. No. 14-7689 (D.N.J. Dec.
10, 2014); Aristeo v. County of Camden, Civ. No. 15-769 (D.N.J.
Feb. 3, 2015).
On a joint hearing of all three cases, the Court
explained to Plaintiff that his complaints were unworkable and
instructed him to file a briefer version of his allegations
which clearly laid out his causes of action in a concise and
coherent manner.
See, e.g., Aristeo v. Helmer, Civ. No. 15-1252
(April 21, 2015 Hr’g Tr. at 6:13-20.)
The Court also instructed
Plaintiff that a number of his claims as asserted against
prosecutors and judges would likely be barred by prosecutorial
and judicial immunities.
Id. at 15:7-12.
The Court provided
Plaintiff 30 days from the resulting April 22, 2015 Order to so
amend his allegations.
See, e.g., id. (Dkt. No. 6.)
Plaintiff
did not elect to simplify or amend his allegations in those
cases pursuant to this Court’s instructions.
Instead, Plaintiff
filed the instant action on June 3, 2015, after the thirty-day
period had elapsed.2
[Dkt. No. 1.]
The Complaint and Amended
This was a problematic decision for Plaintiff, as it
necessarily reset the filing date for purposes of statutes of
limitations to June 3, 2015. This Court finds no grounds in the
Amended Complaint to equitably toll the statutes of limitations
from the filing of Plaintiff’s previous actions, but should
Plaintiff feel sufficient grounds exist, he may petition this
Court for reconsideration. Plaintiff’s conclusory statement
that the acts committed against him were continuous in nature
through the most recent set of allegations and thus should be
excepted from timeliness requirements, (Am. Compl. at ¶ 2), is
not borne out by the allegations in the Amended Complaint.
Even taken in the light most favorable, Plaintiff’s allegations
2
3
Complaint incorporate many of the allegations from his three
prior actions and are equally long. Plaintiff also ignored the
Court’s explicit instruction to avoid immune defendants.3
II.
STANDARD FOR SUA SPONTE DISMISSAL
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must
preliminarily screen in forma pauperis filings, and must dismiss
any filing that is frivolous or malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. Id.
Federal Rule of Civil Procedure 8(a) requires that a
complaint contain:
(1)
[A] short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2)
[A] short and plain statement of the claim showing
that the pleader is entitled to relief; and
(3)
[A] demand for the relief sought, which may include
relief in the alternative or different types of
relief.
“[A] complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to ‘show’ such an
are a patchwork of isolated and sporadic events, not a pattern.
Muhammad v. Dep’t of Corrections, 645 F. Supp. 2d 299, 309
(D.N.J. 2013).
3 For instance, the Amended Complaint asserts causes of
action against three judges before whom Plaintiff appeared, the
Camden County Office of the Prosecutor (CCOP), two CCOP
assistant prosecutors (AP), and six CCOP employees. (Am. Compl.
at ¶¶ 30-40.)
4
entitlement with its facts."
203, 311 (3d Cir. 2009).
Fowler v. UPMC Shadyside, 578 F.3d
However, in screening a complaint to
verify whether it meets this standard, this Court is mindful of
the requirement that pro se pleadings must be construed
liberally in favor of the plaintiff.
Haines v. Kerner, 404 U.S.
519, 520-21, 92 S. Ct. 594, 30 L. Ed. Ed 652 (1972).
III. ANALYSIS
The Amended Complaint before the Court is formidable, and
unnecessarily so.
of allegations.
It spans 59 pages filled with 293 paragraphs
Plaintiff also includes 85 pages of exhibits.
In total, the Amended Complaint includes 14 causes of action4
against 39 named defendants and 20 unnamed defendants.
Further, Plaintiff’s Amended Complaint is wildly noncompliant with Federal Rule of Civil Procedure 20, joining
entirely unrelated defendants and occurrences.
It also
stretches compliance with Rule 8’s pleading requirement to the
limits.
Indeed, the Court is somewhat tempted to dismiss the
Amended Complaint for failing to provide “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8(a)(2); see also Hoffenberg v.
Grondolsky, 2009 WL 5103181 at *4 (D.N.J. Dec. 17, 2009)
Some of these causes of action are actually several
related causes of action or include multiple statutory
frameworks supposedly entitling Plaintiff to relief. So, the
number of causes of action is actually higher.
4
5
(dismissing at screening stage for failure to comply with Rule
8).
Nevertheless, the Court declines to do so.
Screening
Plaintiff’s Amended Complaint at this stage seems more prudent,
given Plaintiff’s abject failure to follow this Court’s
instruction to simplify his allegations in his last set of
actions.
As such, the Court screens each cause of action, in
turn, below.
A. Causes of Action 1 & 2 – “Theft of Intellectual Property”
and “Destruction of Intellectual Property”
Plaintiff’s first and second causes of action concern web
content created by Plaintiff.
Cause of Action 1 concerns a
purported contract whereby Plaintiff alleges he was to generate
copyrightable work—“designs, graphics, video, and sales copy”—
and Ms. Raines or Webmarcom LLC “agreed to pay Plaintiff to
perform [those] duties at either [ ] an hourly rate or paid at
50% of the project quote.”
(Am. Compl. at ¶ 63.)
Plaintiff
alleges that these defendants distributed Plaintiff’s work
product, but did not pay him at the agreed upon rate.
65.)
(Id. at ¶
Plaintiff separately claims that Ms. Raines, CCOP, Det.
Auletto, and AP Cogan participated in the e-mailing, copying and
removal from the internet of Plaintiff’s works, which damaged
them.
(Id. at ¶¶ 72-74.)
Cause of Action 1 is labeled “Theft of Intellectual
Property.” Cause of Action 2 is labeled “Destruction of
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Intellectual Property.”
The Court construes these to be claims
for breach of contract and copyright infringement.
(See Compl.
at ¶¶ 65, 68, 74.)
Regarding breach of contract, under New Jersey law, “[t]o
state a claim for breach of contract, a plaintiff must allege
(1) a contract between the parties; (2) a breach of that
contract; (3) damages flowing therefrom; and (4) that the party
stating the claim performed its own contractual obligations.”
Lukoil N. Am. LLC v. Turnersville Petroleum Inc., 2015 WL
5455648, at *2 (D.N.J. Sep. 16, 2015) (quoting Frederico v. Home
Depot, 507 F.3d 188, 203 (3d Cir. 2007)).
The allegations indicate that Ms. Raines and Webmarcom
“agreed to pay Plaintiff to perform duties at either paid [sic]
an hourly rate or paid at 50% of the project quote.”
Compl. ¶ 63.)
(Am.
However, the documents Plaintiff attaches to the
Complaint and relies upon to substantiate his allegations belie
this.5
The text message transcript explicitly indicates that the
“A court may . . . consider a document integral to or
explicitly relied upon in the complaint. Consideration of these
documents will not convert a motion to dismiss into one for
summary judgment.” Oshinksy v. New York Football Giants, Inc.,
2009 WL 4120237, at *3 (D.N.J. Nov. 17, 2009) (considering
documents that go to “the very heart of Plaintiff’s breach of
contract claim.”). Indeed, to the extent the written document
(essentially a conversation transcript) Plaintiff offers as
substantiating the contract contradicts the allegations, the
written instrument controls. Creelgroup, Inc. v. NGS Am., Inc.,
518 F. App’x 343, 347 (6th Cir. 2013); accord ALA, Inc. v.
5
7
job Plaintiff performed would not be hourly.
(Id. at ¶ 63.)
There is no reference to any percentage of the project being
paid at 50%.
The exhibit specifically indicates that Plaintiff
would be paid a flat fee of “$2k+ for the three [projects.]”6
(Id. at Ex. A.)
As such, in light of the exhibit Plaintiff
incorporates into the Amended Complaint, the Court does not find
that Plaintiff has plausibly alleged a contract term that he
would be paid on an hourly or 50% percentage basis.
Regarding Plaintiff’s copyright infringement claims, “To
establish a claim of copyright infringement, a plaintiff must
establish: (1) ownership of a valid copyright; and (2)
unauthorized copying of original elements of the plaintiff’s
work.”
Malibu Media, LLC v. Lee, 2013 WL 22526250, at *4
(D.N.J. May 22, 2013).
In order to demonstrate a valid
copyright, Plaintiff must allege that he complied with the presuit requirement of registering the copyright of his works.
E.E.O.C. v. Vanguard Grp. Inc., 2006 WL 931613, at *4 (D.N.J.
Apr. 10, 2006) (“In order to withstand a motion to dismiss, a
complaint based on copyright infringement must allege . . . that
CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Gavornik v. LPL
Fin. LLC, 2014 WL 3844828, at *5 (D.N.J. Aug. 5, 2014).
6 Importantly, Plaintiff does not allege that he was not
paid this amount for the projects. This lack of an allegation
would thus stave off any unjust enrichment claim. (See Compl.
at ¶ 78.)
8
the works in question have been registered with the Copyright
Office in accordance with the statute . . . .”).
Plaintiff has not alleged that he has ownership of a valid
copyright—he has only conclusorily alleged that he created works
that would apparently be capable of being copyrighted.
(Am.
Compl. at ¶ 59.); see also Levey v. Brownstone Inv. Grp. LLC,
2012 WL 295718, at *3 (D.N.J. Feb. 1, 2012) (“Subject to certain
exceptions, the Copyright Act requires copyright holders to
register their works before suing for copyright infringement.”).
As such, to the extent they assert a claim for copyright
infringement, Causes of Action 1 and 2 must be dismissed at
screening for failure to state a claim.7
See Lyles v. Capital—
EMI Music, Inc., 2012 WL 3962921, at *4 (S.D. Ohio Sep. 11,
2012) (report and recommendation dismissing copyright
infringement claim at screening stage for failing to allege
registration), adopted by 2012 WL 5378873, at *3 (S.D. Oh. Oct.
30, 2012).
B. Cause of Action 3 – “Unfair Methods of Competition”
Cause of Action 3, labeled “Unfair Methods of Competition,”
purports to bring claims against Ms. Raines, Webmarcom, and
Moreover, even if Plaintiff could be said to have stated a
claim, with regard to Cause of Action 1, assuming the
distribution occurred shortly after Plaintiff’s access to his
works was cut off on March 24, 2011, the claim would be barred.
(Am. Compl. at ¶ 61.) Copyright infringement is subject to a
three-year statute of limitations. 17 U.S.C. § 507(b).
7
9
unnamed defendants for substantially the same conduct described
in Causes of Action 1 & 2.
Plaintiff appears to bring Cause of
Action 3 pursuant to a definition of “fraudulent, unlawful, and
unfair competition” contained in: 15 U.S.C. § 45(a)(1), 15
U.S.C. § 52(a)(2), 18 U.S.C. § 1951(a), 18 U.S.C. § 1341, and
Article I, Section 19 of the New Jersey Constitution.
No private right of action exists under 15 U.S.C. §
45(a)(1) or 15 U.S.C. § 52(a)(2).
Phillips v. Deutsche Bank
Nat. Trust Co., 2010 WL 5246032, at *1 (C.D. Cal. Dec. 16, 2010)
(no private right of action under 15 U.S.C. § 45(a)(1));
Montgomery v. Kraft Foods Glob., Inc., 2012 WL 6084167, at *1
n.2 (W.D. Mich. Dec. 6, 2012) (No private right of action under
15 U.S.C. § 52(a)(2)).
18 U.S.C. § 1951(a) and 18 U.S.C. § 1341
are both part of the criminal code and also do not provide a
private right of action.
Boyd v. Wilmington Trust Co., 630 F.
Supp. 2d 379, 385 (D. Del. 2009); Jones v. TD Bank, 468 Fed.
Appx. 93 (3d Cir. 2012) (finding that the federal mail fraud
statute did not provide plaintiff with private right of action).
Finally, Article I, Section 19 of the New Jersey Constitution is
the provision of the state constitution providing for collective
bargaining rights.
It is obviously not applicable.
Assuming then, that Plaintiff sought to bring a claim for
unfair competition claim under the Lanham Act, Plaintiff would
need to show, inter alia, that a trademark was at issue that was
10
“valid and legally protectable.”
Buying For The Home, LLC v.
Humble Abode, LLC, 459 F. Supp. 2d 310, 317-318 (D.N.J. 2006).
Plaintiff has alleged no valid or enforceable mark on which to
found an unfair competition claim.
Instead, Plaintiff relies
upon the same vaguely described copyright protection discussed
above with regard to Causes of Action 1 and 2.
As such, Cause
of Action 3 must be dismissed at the screening stage.8
C. Cause of Action 4 – Interference with Government Assisted
Programs
Cause of Action 4 alleges that Ms. Raines and unnamed
defendants interfered with Plaintiff’s unemployment benefits.
Specifically, Plaintiff alleges that Ms. Raines or unnamed
defendants contacted the New Jersey Department of Labor and
Workforce and alleged that Plaintiff was working while receiving
unemployment on March 5, 2011 and July 15, 2012.
91.)
(Am. Compl. ¶
As a result, Plaintiff alleges his benefits were
terminated and he was responsible for the repayment of benefits,
amounting to $43,000.
In so doing, Plaintiff alleges that Ms.
Raines and/or unnamed defendants violated 18 U.S.C. §
245(b)(1)(B) and N.J.S.A. 43:21-16.
To the extent Plaintiff alleges that the defendants named
in this cause of action committed acts “including the theft and
destruction of property, unjust enrichment, breach of contract,
publication of private information, interference with business
relationships, and other illegal acts and practices,” (Am.
Compl. at ¶ 78), such claims are either subsumed by other causes
of action or are completely unsubstantiated by the allegations.
8
11
18 U.S.C. § 245(b)(1)(B) is a part of the criminal code and
makes it unlawful to interfere with any person’s receipt of
“benefits of any program or activity receiving Federal financial
assistance.”
of action.
Id.
This statute does not create a private right
Wolf v. Jefferson Cnty., 2016 WL 233247, at *2 (E.D.
Mo. Jan. 20, 2016); John’s Insulation, Inc. v. Siska Const. Co.,
774 F. Supp. 156, 163 (S.D.N.Y. 1991) (explaining that 18 U.S.C.
§ 245 confers neither substantive rights nor a private right of
action for damages.”).
N.J.S.A. 43:21-16, entitled “Penalties; investigating
staff,” provides the fining mechanism by which the Division of
Unemployment and Temporary Disability Insurance may penalize
individuals or employers who make false statements regarding
unemployment benefits.
Id. at 43:21-16(a)-(d).
This
administrative mechanism, as well, provides Plaintiff with no
claim.
As such, Cause of Action 4 is dismissed at screening for
failure to state a claim.9
To a certain extent, this claim sounds in defamation law.
Plaintiff is essentially arguing that Ms. Raines—or others—made
knowingly false statements concerning his employment status.
However, the conduct at issue occurred in 2011 and 2012, (Am.
Compl. at ¶ 91, 95), and thus would be barred under New Jersey’s
one-year statute of limitations for libel and slander actions.
N.J.S.A. 2A:14-3.
9
12
D. Cause of Action 5 – Invasion of Privacy – Intrusion Upon
Seclusion And Publicity Given to Private Life
Cause of Action 5 alleges claims of invasion of privacy.
Specifically, the allegations state that Ms. Raines, Ms.
Ferguson, Ms. Moken and unnamed defendants compiled a “consumer
report” from an investigative reporting agency and disclosed the
contents of that report at business events and over the internet
between 2011 and 2014.
(Am. Compl. at ¶¶ 101-107.)
There are
several forms of invasion of privacy and the allegations in the
Amended Complaint purport to assert two of them: Intrusion and
Public Disclosure of Private Life.
(Id. at p. 20); Rumbauskas
v. Cantor, 138 N.J. 173, 180 (1994) (outlining forms of invasion
of privacy).
A claim in New Jersey for intrusion upon seclusion follows
the Restatement (Second) of Torts description of that tort: “One
who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a
reasonable person.”
3 Restatement (Second) of Torts § 652B
(1977); see also Castro v. NYT Television, 384 N.J. Super. 601,
608-09 (App. Div. 2006).
Plaintiff has not stated a claim for intrusion upon
seclusion, as the contents of the report are not described other
13
than to say that are records of his “private information” or his
“personal affairs.”
See generally Swift v. United Food Comm.
Workers, 2008 WL 2696174, at *4 (App. Div. July 11, 2008)
(dismissing intrusion claim where plaintiff did not support his
claims with “any basic and essential facts”).
Plaintiff
describes the report as a “consumer report.”10
(Am. Compl. at ¶
102.)
The best indication the Amended Complaint gives, however,
is that Intelysis Corp., the company which conducted an
investigation of plaintiff, sought to determine whether the
credentials Plaintiff provided in his employment application
were correct with regard to Plaintiff’s attendance of a mini-MBA
program at a public university.
(Id. at Ex. E); Hammer, 2009 WL
1686820, at *6 (holding that company which hired an investigator
to seek out wrongdoing by CEO, including tailing the CEO on a
date, did not state a claim for intrusion upon seclusion).
Absent more information, this Court cannot determine that
Plaintiff alleges that Intelysis prepared a consumer
report in violation of 15 U.S.C. § 1681. The allegations do not
support this. First, Plaintiff has not asserted a cause of
action against Intelysis, which is significant. Hammer v. Hair
Sys., 2009 WL 1686820, at *6 (App. Div. June 18, 2009). Second,
Plaintiff has not alleged that Intelysis was a consumer
reporting agency. Indeed, the e-mail signature in the document
incorporated into the Amended Complaint indicates that Intelysis
Corp. provides “due diligence[,] digital forensics[,] employment
screening[,] forensic accounting[, and] investigations.” (Am.
Compl. Ex. E); see also Hammer, at *6 (holding that FCRA claim
could not be stated against company that conducted employment
investigation, absent showing that the investigator “regularly
engages in the preparation on consumer reports.”).
10
14
Plaintiff has stated an intrusion that would be highly offensive
to a reasonable person.11
See In re Nickelodeon Consumer Privacy
Litig., MDL No. 2443, 2015 WL 248334, at *6 (noting that
intrusion claim requires “truly exceptional conduct”); Tomayo v.
American Coradious Intern., L.L.C., 2011 WL 6887869, at *4
(D.N.J. Dec. 28, 2011) (holding that bare allegations of
repeated harassing phone calls, without more, are insufficient
to state a claim).
With regard to public disclosure of private facts: “In
order to state a claim . . . a plaintiff must establish that
private matters were revealed, that dissemination of such facts
would be highly offensive to a reasonable person, and that there
is no legitimate public interest in the disclosure.”
Capers v.
FedEx Ground, 2012 WL 2050247, at *5 (D.N.J. June 6, 2012).
statute of limitations for this claim is one year.
The
Rumbauskas
v. Cantor, 138 N.J. 173, 183 (1994); accord Kassa v. Johnson,
2009 WL 1658528, at *5 (App. Div. June 16, 2009); Rolax v.
Whitman, 175 F. Supp. 2d 720, 720 (D.N.J. 2001).
All of the
alleged conduct in this case, by Plaintiff’s admission, occurred
between March 16, 2011 and January 2, 2014.
(Id. at ¶ 104.)
As
such, Plaintiff’s claim for public disclosure is time-barred.
If Plaintiff can allege further information about the
report showing that its preparation states a claim for intrusion
upon seclusion, he may file an amended version of his
allegations.
11
15
Moreover, even if Plaintiff’s claim for public disclosure
were timely, he has failed to state a claim for the same reasons
as his intrusion claim: absent additional information, the
allegations do not establish beyond a conclusory level that
private matters were revealed or that such matters would be
highly offensive to a reasonable person.
Cf. Capers, 2012 WL
2050247, at *5 (holding plaintiff had stated a claim because
“the law recognizes that information regarding a private
employee’s income is a private matter”).
If the extent of the
report were whether Plaintiff attended Rutgers University, which
is the only subject area the Amended Complaint suggests the
report covers, such information would not be highly offensive to
a reasonable person.
As a result, because Plaintiff has failed to state a claim,
Cause of Action 5 must be dismissed at screening.
E. Cause of Action 6 – Defamation
Plaintiff also brings a series of defamation claims against
Ms. Raines, Ms. Ferguson, Ms. Moken, Mr. Colozzi, Ms. Wescoat,
Mr. Friedman, and Ms. Friedman.
Under New Jersey law, the
statute of limitations for a libel or slander actions is one
year.
N.J.S.A. 2A:14-3.
While the allegations of the
defamatory conduct are various, the conduct appears to have
occurred between April 2011 and June 2013.
16
(Am. Compl. at ¶¶
115, 127.)
Plaintiff’s claims are therefore untimely and must
be dismissed.12
F. Cause of Action 7 – Legal Malpractice
Plaintiff brings claims of legal malpractice against the
Law Firm of Helmer, Conley & Kasselman, P.A., Mr. Helmer, Mr.
Conley, and Ms. Trani.
The statute of limitations on a legal
malpractice claim in New Jersey is two years.
2(a).
N.J.S.A. 2A:14-
Plaintiff claims that his attorneys pressured him into
agreeing to be subject to a restraining order from Ms. Raines in
2012.
(Am. Compl. at ¶ 144-149.)
As such, Plaintiff’s claims
are time-barred.
G. Cause of Action 8 – Criminalization of Inherent Liberty and
Protection From Fundamentally Unfair Governmental Action
Cause of Action 8 is a vague amalgam of allegations against
ten different defendants.
Plaintiff claims first that AP Corson
wrongly dismissed his criminal complaints against Ms. Raines.
(Am. Compl. at ¶ 175.)
Put simply, such conduct is squarely
within the prosecutor’s discretion.
State v. Ward, 303 N.J.
While Plaintiff provides the date of the alleged
defamation by all other defendants, he does not do so for Ms.
Wescoat. Other than serving a subpoena, (Am. Compl. at ¶ 213),
Plaintiff alleges no conduct whatsoever that occurred within one
year of his filing this action in the entire Amended Complaint.
As such, the Court is inclined to believe this claim is timebarred. Nevertheless, if Ms. Wescoat’s statements indeed
occurred within one year of Plaintiff the Complaint, he may
amend his allegations to state the dates of the alleged
defamatory conduct and proceed with the claim.
12
17
Super. 47, 50 (App. Div. 1997) (“[T]he Attorney General and the
county prosecutors have been designated to prosecute the
criminal business of the State, and to exercise the discretion
whether to prosecute or refrain from prosecution.”) (citation
omitted); See also N.J.S.A. 2A:158-4 (“The criminal business of
the State shall be prosecuted by the Attorney General and the
county prosecutors”).
As such, any allegations concerning such
a decision fail to state a claim.
Second, the allegation that certain defendants planned to
catch Plaintiff violating his restraining order does not state a
cause of action.
(Am. Compl. ¶ 176.)
To the extent that
Plaintiff’s alleged apprehension and restraint without a warrant
pursuant to this plan states a claim for violation of his
constitutional rights pursuant to 42 U.S.C. § 1983, such a claim
would be time-barred under the two-year statute of limitations.
Kreimer v. National R.R. Passenger Corp., 2011 WL 4906631, at *1
(D.N.J. Oct. 13, 2011).
Third, Plaintiff alleges that on “diverse dates after May
17, 2013,” many defendants “participated in the tampering with
and destruction of evidence in Plaintiff’s criminal
investigation.”
(Am. Compl. at ¶ 184.)
Other than a bald
allegation that the destroyed evidence “demonstrated Defendant
Ms. Raines acted as an aggressive antagonist and not as a
victim,” Plaintiff does not elaborate on how or what evidence
18
was destroyed or concealed.
As such, the allegations do not
allow this Court to infer a cause of action.
Finally, Plaintiff’s assertion that Mr. Auletto swore
“false statements before a Grand Jury,” is so devoid of factual
matter that this Court cannot assess whether he has plausibly
stated a claim.13
Moreover, such a claim would need to address
the notion that “[p]rosectuorial immunity extends to employees
of a prosecutor, including detectives, ‘when the employee’s
function is closely allied to the judicial process.’”
Newsome
v. City of Newark, 2014 WL 4798783, at *2 (D.N.J. Sep. 25,
2014).
Accordingly, because none of the conduct alleged in Cause
of Action 8 plausibly states a timely claim, this set of
allegations, too, must be dismissed.
H. Cause of Action 9 – Negligence and Breach of Duty
Plaintiff also asserts a host of claims against nine
defendants for “negligence” and “breach of duty.”
Each of these
claims appears more likely to be a claim for violation of his
constitutional rights pursuant to 42 U.S.C. § 1983.
Moreover, to the extent Plaintiff seeks to impugn any
ongoing criminal proceedings in state court or proceedings which
resulted in conviction or imprisonment, such an action by this
Court would run afoul of the Heck doctrine. Heck v. Humphrey,
512 U.S. 477 (1994). The Court has explained this to Plaintiff
at a previous hearing. See, e.g., Aristeo v. Helmer, Civ. No.
15-1252 (April 21, 2015 Hr’g Tr. at 22:20-23:2.)
13
19
With regard to Plaintiff’s claim that his Open Public
Records Act (OPRA) was improperly denied, the alleged conduct
occurred in January 2012.
As such, even if this were to state a
negligence or § 1983 claim, such a claim is time-barred.
N.J.S.A. 2A:14-2; Patyrak v. Apgar, 511 F. App’x 193, 195 (3d
Cir. 2013).
Moreover, OPRA provides a designated forum by which
denials of requests may be adjudicated.
N.J.S.A. 47:1A-6.
Regarding the circumstances of Plaintiff’s arrest on May
17, 2013, including that he was subject to excessive force and
was arrested without jurisdiction, such conduct is also timebarred for the same reason as Plaintiff’s OPRA request denial.
(Am. Compl. at ¶¶ 200-203, 223.)
Plaintiff alleges that he served a subpoena duces tecum
upon the Voorhees Township Police Department and Mr. Bordi in
order to assist in his defense, and that Mr. Bordi failed to
respond to the subpoena.
(Id. at ¶¶ 213-214.)
Absent more
information than these two brief allegations, such as the nature
of the subpoena and whether it was properly served, this Court
cannot infer facts sufficient to demonstrate that Plaintiff has
stated a claim.
Accordingly, because Plaintiff’s claims are either nonviable or time barred, Cause of Action 9 must be dismissed at
screening.
20
I. Cause of Action 10 – Cruel and Unusual Punishment
Plaintiff also raises a constitutional challenge arising
out of the alleged the conditions of his confinement at Camden
County Correctional Facility (CCCF) in May and June 2013.
Many
of Plaintiff’s claims of wrongs committed against him during his
pretrial detention strike this Court as fanciful or exaggerated.
Nevertheless, the Court assumes that Plaintiff—under pain of
this Court’s inherent power to address frivolous allegations—has
complied with Federal Rule of Civil Procedure 11’s requirement
that factual contentions have evidentiary support and are
brought in good faith.
Fed. R. Civ. P. at 11(b)(3).
Specifically Plaintiff alleges the following conduct violated
his Eighth Amendment rights:
Upon admission to CCCF, the intake nurse briefly
looked at an injury to Plaintiff’s wrist, but denied
him access to a doctor because she did not find the
injury to be urgent, (Am. Compl. at ¶¶ 228-29);
Plaintiff was not released from his cell for exercise
and over a 29-day stay was only permitted three total
hours out of his cell (and then only to shower), (Am.
Compl. at ¶¶ 237-38);
Plaintiff was not permitted to shower for eleven days,
(Id.);
Four inmates were placed in a cell designed for two
inmates, (Id. at ¶ 234);
Plaintiff’s cell was without toilet paper for days,
(Id. at ¶ 240);
Plaintiff was denied access to basic hygiene items
including a toothbrush, (Id. at ¶¶ 241-42);
21
Plaintiff was denied clean clothes, (Id. at ¶¶ 24446);
The cells and hallways were covered in mold and feces
and Plaintiff suffered a four-day sickness as a
result, (Id. at ¶¶ 248, 252);
Plaintiff was not permitted to file grievances or
grievance forms Plaintiff filed were thrown out in
front of him, (Id. at ¶¶ 256-57);
Due to grievances he managed to file, facility staff
physically threatened Plaintiff and threatened him
with delay of food, (Id. at ¶ 258);
Plaintiff was attacked by a psychologically unstable
fellow inmate, (Id. at ¶¶ 241-42);
Plaintiff was denied access to the law library, (Id.
at ¶¶ 265-66).
Plaintiff’s constitutional claims necessarily implicate 42
U.S.C. § 1983.
In order to recover under § 1983, a plaintiff
must show two elements: (1) a person deprived him or caused him
to be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law.
Moog v. Untig, 2008 WL 4154548, at *3 (D.N.J.
Sep. 3, 2008) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
As outlined below, at least some of Plaintiff’s allegations
against unnamed prison employees appear to show a constitutional
deprivation by a state actor.14
As such, the Court will, with
In addition to bringing this action against anonymous
prison employees, Plaintiff has brought this action against the
County of Camden, CCCF, Mr. Lanigan—who Plaintiff alleges
oversaw CCCF, and Mr. Owens—the Warden of CCCF. Plaintiff
cannot name CCCF as a proper defendant to this cause of action
14
22
great caution, allow this claim to proceed past the screening
stage against those defendants.
i. Due Process
With regard to a constitutional deprivation, because the
allegations appear to concern Plaintiff’s pretrial detention,
the Eighth Amendment is not directly applicable.
“It is well-
settled that the Eighth Amendment does not provide protection to
individuals who have not yet been convicted or sentenced.”
Mattern v. City of Sea Isle, 2015 WL 5445042, at *6 (D.N.J. Sep.
15, 2015).
Nevertheless, the Fourteenth Amendment due process
rights of pretrial detainees prohibit punishment prior to an
adjudication of guilt.
Moog v. Untig, 2008 WL 4154548, at *3
(D.N.J. Sept. 3, 2008).
As the Supreme Court has explained:
because “the jail is not an entity cognizable as a ‘person’ for
the purposes of a § 1983 suit.” Diaz v. Cumberland Cnty. Jail,
2010 WL 3825704, at *3 (D.N.J. Sep. 23, 2010). Neither is
Camden County a person properly sued under § 1983. Hill v.
Ocean Cnty. Jail Complex, 2006 WL 902170, at *3 n.1 (D.N.J. Apr.
4, 2006) (“[L]ocal government units and supervisors are not
liable under § 1983 solely on a theory of respondeat
superior.”). Finally, Plaintiff conclusorily alleges that
Warden Owens and Commissioner Lanigan “fail[ed] to provide an
environment conducive of maintaining cognitive, emotional, and
physical health and safety” or were aware of violations
committed by other officers. (Am. Compl. at 267-68.) Without
more than these sparse conclusions, Plaintiff has not plausibly
shown personal involvement by these defendants. Pfeiffer v.
Hutler, 2012 WL 4889242, at *4-*5 (D.N.J. Oct. 12, 2012); see
also Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (supervisors
“may not be held liable for unconstitutional conduct of their
subordinates under a theory of respondeat superior”). As such,
the claims against all of these defendants will be dismissed
without prejudice.
23
[I]f a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more,
amount to “punishment.” Conversely, if a restriction or
condition is not reasonably related to a legitimate
goal-if it is arbitrary or purposeless-a court
permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.
Bell v. Wolfish, 441 U.S. 520, 539 (1979).
The Court explained
that the government has a legitimate interest in maintaining
security and order at a detention facility.
“Restraints that
are reasonably related to the institution’s interest in
maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are discomforting and
are restrictions the detainee would not have experienced had he
been released while awaiting trial.
Bell, 441 U.S. at 540.
Retribution, deterrence or grossly exaggerated responses to
genuine security considerations are not, however, legitimate
nonpunitive governmental objectives.
Duran v. Merline, 2008 WL
9846824, at *6 (D.N.J. Mar. 11, 2008).
The Third Circuit has explained that in applying the
holding of Bell, as in the Eighth Amendment’s cruel and unusual
punishment standard, the Fourteenth Amendment standard of
unconstitutional punishment contains an objective and subjective
component:
[T]he objective component requires an inquiry into
whether “the deprivation [was] sufficiently serious”
24
and the subjective component asks whether “the
officials act[ed] with a sufficiently culpable state
of mind[.]”
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
In order to
satisfy the objective component, “an inmate must show that he
was subjected to genuine privation and hardship over an extended
period of time.”
Kilmartin v. Ocean County Dept. of
Corrections, 2012 WL 2839823, at *3 (D.N.J. July 10, 2012).
To
satisfy the subjective component, it must be shown that an
individual defendant was deliberately indifferent to Plaintiff’s
health or safety, id., “a state of mind state of mind equivalent
to a reckless disregard of a known risk of harm.”
Burton v.
Hudson Cnty. Correction Ctr., 2008 WL 508506, at *4 (D.N.J. Feb.
20, 2008).
1. Denial of Medical Care
First, Plaintiff’s allegation that the intake nurse failed
to comply with N.J.A.C. 10A:31-13.9(c)(5) fails to state a
claim.
That code provides for the initial medical screening of
inmates before entering the general population.
Based upon
Plaintiff’s allegations, the nurse looked at Plaintiff’s wrist
and determined it was not an urgent matter requiring a doctor’s
care.
(Am. Compl. at ¶¶ 227-230.)
25
Such conduct, without more,
does not state a claim.15
See Ortiz v. Atlantic Cnty. Justice
Facility, 2014 WL 4755501, at *5 (D.N.J. Sep. 24, 2014) (“A
prisoner’s subjective dissatisfaction with his medical care . .
. does not in itself indicate deliberate indifference.”).
Plaintiff was provided medical care for his needs—an intake
nurse examined Plaintiff’s wrist.
The care, while not resulting
in any alleged long term harm, simply did not meet Plaintiff’s
satisfaction.
Duran, 2008 WL 9846824, at *8.
As such,
Plaintiff “has not demonstrated any serious medical need that
has been purposefully or willfully ignored by defendant[s.]”
Id.
2. Prison Conditions
Several of Plaintiff’s allegations concerning the
conditions of his confinement state a claim that his due process
rights were violated.
For instance, “the near-total deprivation
of the opportunity to exercise may violate the Eighth Amendment
unless the restriction relates to a legitimate penological
purpose.”
Platt v. Brockenborough, 476 F. Supp. 2d 467 (E.D.
Pa. Feb. 21, 2007); see also Patterson v. Mintzes, 717 F.2d 284,
289 (6th Cir. 1983) (denial of exercise for 46 days sufficient
to survive summary judgment).
While “dramatic restrictions on
Additionally, this conduct occurred on May 17, 2013,
thereby rendering it time-barred by the two-year statute of
limitations. Muhammad v. Dep’t of Corrections, 645 F. Supp. 2d
299, 309 (D.N.J. 2008).
15
26
exercise” may not give rise to constitutional violations where
adequate indoor activity is provided, Stone-El v. Sheahan, 914
F. Supp. 202, 207 (N.D. Ill. 1995), here Plaintiff alleges he
was only permitted to leave his cell for a total of three hours
in twenty-nine days, and then only to shower.
Likewise, the denial of personal hygiene products, showers
or clean cell facilities is also sufficient where dramatic
enough to cause the illness Plaintiff alleges.
Shorter v. Baca,
101 F. Supp. 3d 876, at 895 (C.D. Cal. Apr. 21, 2015)
(“Plaintiff also notes that she was deprived access to showers .
. . and that her cell was not cleaned during her entire 32-day
stay.
These are all basic necessities protected by the
constitution.”).16
Specifically, Plaintiff alleges he became
physically ill for four days as a result of the conditions.
At
this very early stage, Plaintiff’s allegations are sufficient to
survive screening.
Other portions of Plaintiff’s allegations concerning
confinement do not state a claim. Plaintiff’s lack of space is
not enough. Hubbard v. Taylor, 538 F.3d 229, 234-35 (3d Cir.
2008) (holding no due process concerns arose from “substantial
time on floor mattresses”). Plaintiff’s deprivation of toilet
paper for several days, while unfortunate, has been held not to
be a constitutional violation. Stilton v. Albino, 2010 WL
4916103, at *12 (D.N.J. Nov. 23, 2010). Plaintiff has not shown
beyond a conclusory level that he was placed in a cell with a
psychologically disturbed inmate as a form of punishment or
through culpable intent to punish or deliberate indifference.
See Bistrian v. Levi, 696 F.3d 352, 370 (3d Cir. 2012).
16
27
Plaintiff’s allegations that he was named “mister
grievance” by the defendants, that grievance forms were thrown
away in front of him, that he was physically threatened, denied
food, and wrongly punished is sufficient to meet to subjective
prong of the Bell analysis.
Such conduct viewed in the light
most favorable, supports the inference that some or all of
problematic conditions of confinement were meant to punish
Plaintiff.
Bragg v. Ellis, 2015 WL 8491471, at *4 (D.N.J. Dec.
9, 2015).
ii.
Access to the Courts
Plaintiff also alleges that he was denied access to the law
library and a paralegal for purposes of researching his legal
defenses.
Such a claim is premised on denial of access to the
courts, a right guaranteed to inmates by the Constitution.
Duran v. Merline, 923 F. Supp. 2d 702, 722 (D.N.J. 2013).
The
Supreme Court has recognized “the fundamental constitutional
right of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.”
Lewis v.
Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430
U.S. 817, 828 (1997).)
In order to state a claim for denial of access to the
courts, a plaintiff must state, inter alia, an “actual injury.”
28
Duran, 923 F. Supp. 2d at 723.
To do this, he must identify an
actual, non-frivolous claim or defense that was lost to him by
being denied access to the courts.
Small v. Owens, 2006 WL
2355512, at *9 (D.N.J. Aug. 10, 2006).
no such claim.
Plaintiff has identified
As a result, his access to the courts claim must
be dismissed without prejudice.
iii. Retaliation
Plaintiff also appears to allege that he was retaliated
against for completing grievance forms.
“[R]etaliation for the
exercise of constitutionally protected rights . . . ‘is itself a
violation of rights secured by the constitution actionable under
section 1983.”
Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir.
2010) (quoting Withite v. Napoleon, 897 F.2d 103, 111-12 (3d
Cir. 1990).
Plaintiff must allege “(1) he engaged in
constitutionally protected activity; (2) he suffered, at the
hands of a state actor, adverse action sufficient to deter a
person of ordinary firmness from exercising his constitutional
rights; and (3) the protected activity was a substantial or
motivating factor in the state actor’s decision to take adverse
action.”
Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015),
as amended (Mar. 24, 2015).
“[T]he filing of grievances and lawsuits against prison
officials constitutes constitutionally protected activity.”
Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011) (per
29
curiam).
Plaintiff has alleged that he frequently filed
grievance forms while incarcerated.
As noted above, Plaintiff
alleges for so doing he was ridiculed, harassed, threatened, and
denied food.
He also alleges that he witnessed his grievances
thrown into the trash.
Such allegations, if made in good faith,
state a claim for retaliation sufficient to survive screening.17
J. Causes of Action 11, 12 and 14
Plaintiff also brings claims for: (1) criminalization of
first amendment freedoms, (2) violation of his right to
substantive due process, (3) concealment or destruction of
evidence.
All three of these claims suffer from the same
deficiency: they state merely conclusory allegations devoid of
any factual underpinning.
First, with regard to Plaintiff’s claim for criminalization
of first amendment freedoms, he accuses 16 different defendants
of acting in concert to “directly and proximately cause[]
Plaintiff the loss of First Amendment freedoms for individual
expression, association with like-minded individuals, public
opinion and criticism, public protest, and the redress of
The Court takes this opportunity specifically to warn
Plaintiff. During the course of the litigation, if it becomes
evident that he did not in fact have a good faith belief that
his factual contentions had evidentiary support, the Court will
not hesitate to consider the full range of appropriate
sanctions, up to and including filing preclusion. Fed. R. Civ.
P. 11(c).
17
30
grievances, including the presentation of grievances before a
tribunal.”
(Cmpl. ¶ 269.)
Plaintiff elaborates no further than
this, other than to criticize judges who issued gag orders in
proceedings of which he was a part.18
These vague, conclusory
allegations are insufficient to state a claim and must be
dismissed.
Second, with regard to a denial of substantive due process,
the Court is again at a loss as to the substance of Plaintiff’s
claims.
Plaintiff names everyone from his former romantic
interest and employer, Ms. Raines, to his former defense
attorneys of detaining Plaintiff on multiple occasions without a
legal basis, incarcerating him for approximately seven months,
and facilitating and assisting with Plaintiff’s deprivation of
rights and individual liberty.
(Cmpl. At ¶ 276.)
The complaint
contains no factual allegations to substantiate these farreaching claims.
As such, this cause of action fails to state a
claim and must be dismissed.
Third, Plaintiff alleges that 17 defendants concealed or
destroyed “evidence.”
Even assuming such conduct, presumably a
part of Plaintiff’s criminal prosecution in state court, could
be the subject of a civil claim in federal court, Plaintiff does
Such claims run afoul of judicial immunity and the
Rooker-Feldman doctrine. The Court previously advised Plaintiff
of this. Aristeo v. Helmer, Civ. No. 15-1252 (April 21, 2015
Hr’g Tr. at 17:18-23.)
18
31
not indicate which evidence was destroyed, the manner in which
it was destroyed, or when it was destroyed.
A pleading must
indicate “the who, what, when, where, and how: the first
paragraph of any newspaper story.”
180 F.3d 525, 534 (3d Cir. 1999).
Advanta Corp. Sec. Litig.,
District Courts “should not
have to read and decipher tomes disguised as pleadings.”
Imoore
v. Gasbarro, 2012 WL 1909368, at *4 (D.N.J. May 25, 2012).
Absent further factual detail from which this Court can
reasonably infer a viable cause of action, this claim must be
dismissed.
K. Cause of Action 13
Plaintiff also brings a cause of action for Intentional
Infliction of Emotional Distress against twelve defendants for
their conduct against him.
“Generally speaking, to establish a
claim for intentional infliction of emotion distress, the
plaintiff must establish intentional and outrageous conduct by
the defendant, proximate cause, and distress that is severe.”
Drisco v. Elizabeth, 2013 WL 6450221, at *9 (D.N.J. Dec. 9,
2013).
The Court is confined, again, to the two-year statute of
limitations in considering conduct.
N.J.S.A. 2A:14-2.
While the Court is convinced much of the conduct Plaintiff
alleges to fulfill this cause of action occurred outside the
limitations period, even looking at the conduct as a whole as
alleged in the Complaint, Plaintiff only conclusorily alleges
32
that he suffered “damages and losses, severe mental anguish, and
emotional and physical distress.”
Johnson v. Peralta, 2013 WL
775541, at *2 (D.N.J. Feb. 27, 2013) (dismissing emotional
distress claim founded upon conclusory allegations about the
suffering of emotional distress).
Absent more specific
allegations of severe distress, Plaintiff has not stated a cause
of action.
IV.
CONCLUSION
In light of the above, all of Plaintiff’s claims are
dismissed without prejudice with the exception of his claims
concerning his conditions of confinement and retaliation against
unnamed defendants.
These two claims are misjoined, as there is
no common question of law or fact with regard to this cause of
action in relation to the dismissed causes of action.
Civ. P. 20.
Fed. R.
As such, the Court will sever this portion of the
action into a new civil action number.
See Alfred v. New
Jersey, 2015 WL 4138882, at *2-*3 (D.N.J. July 9, 2015) (“Rule
20’s requirements are to be liberally construed in the interest
of convenience and judicial economy.”).
Plaintiff may amend his
factual allegations with regard to the dismissed without
prejudice causes of action in the current civil action within
thirty days of the entry of the accompanying Order, although the
Court warns Plaintiff of his Rule 11 obligations.
n.17.
33
See supra at
With regard to the severed causes of action, while
Plaintiff’s Amended Complaint has survived screening, “as a
practical matter, it is in most instances impossible for the
United States Marshal to serve a summons and complaint on . . .
unidentified defendants.”
Boyd v. Bergen Cnty. Jail, 2007 WL
1695736, at *3 n.1 (D.N.J. June 7, 2007) (citation omitted).
As
such, pursuant to the applicable version of Rule 4(m) at the
time of filing of the Complaint, within 120 days of entry of the
accompanying Order Plaintiff shall file an amended complaint
identifying by name the fictitious defendants who are alleged to
have violated his rights.
Thereafter, upon receipt of adequate
identifying information, the Clerk of the Court shall issue
summons against those defendants.
For the time being, the Court
will administratively terminate the new civil action as well,
subject to automatic reopening upon the filing of an amended
complaint.
An appropriate Order follows.
DATED: February 3, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
34
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