TELFAIR v. POST et al
Filing
6
OPINION. Signed by Judge Jerome B. Simandle on 6/20/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TOMMIE H. TELFAIR,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 18-3842 (JBS-AMD)
v.
JOHN POST, et al.,
OPINION
Defendants.
APPEARANCES:
Tommie Telfair, Plaintiff Pro Se
#28440-050
Fort Dix
5841
Federal Correctional Institution
Inmate Mail/Parcels
East: PO Box 2000
Fort Dix, NJ 08640
Craig Carpenito, United States Attorney
Daniel J. Gibbons, Assistant United States Attorney
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102
Attorneys for John Post, Gregory Hilton, and Matthew Greimal
SIMANDLE, U.S. District Judge:
INTRODUCTION
Before the Court is a motion to dismiss Plaintiff Tommie
Telfair’s (“Plaintiff”) civil rights complaint filed by
defendants John Post, Gregory Hilton, and Matthew Greimal.
Telfair is an inmate presently confined at FCI Fort Dix, New
Jersey, serving a sentence of imprisonment imposed upon
convictions in the District of New Jersey in United States v.
Telfair, Cr. No. 08-0757 (DMC), aff’d App. No. 11-3456 (3d Cir.
Dec. 12, 2012). Defendants removed the complaint from state
court and now move to dismiss it under Federal Rule of Civil
Procedure 12(b)(6). Motion to Dismiss, Docket Entry 4. They
further argue that Plaintiff is precluded from filing his claims
based on an order entered by former Chief Judge Brown in one of
Plaintiff’s prior civil actions. See Telfair v. Office of the
U.S. Attorney, No. 10-2958 (D.N.J. administratively terminated
Dec. 14, 2011).
However, there are two issues the Court must determine
before it can decide the motion to dismiss. First, it must
determine whether it must recuse itself from this lawsuit as
Plaintiff has named three judges of this District as defendants.
If recusal is not required, it must next determine whether the
suit was properly removed from state court as Plaintiff has
objected to removal and requests a remand to state court. Only
after deciding these two issues may the Court consider the
motion to dismiss.
If the case was properly removed, the Court has an
independent obligation to screen complaints filed by prisoners
“seek[ing] redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A. This
section makes no distinction between complaints filed in federal
2
court or those filed in state court and removed to federal
court. Thus, the Court must also consider whether the complaint
is frivolous, malicious, or fails to state a claim upon which
relief may be granted against the other defendants named in the
complaint.
II. BACKGROUND
Plaintiff filed a complaint in the New Jersey Superior
Court, Law Division, Essex County alleging constitutional
violations by various state and federal officials including
defendants Post, Hilton, and Greimal, who are agents with the
Drug Enforcement Administration (“DEA”), Mario Recinos, Joseph
Thompson, John Disanto, Michael Pedicini, Antonio Rodriguez,
Wilfredo Perez, John Azzarello, Pablo Gonzalez, Erica Silva, J.
Ortiz, L. Corino, Ferrerina, B. Homes, the State of New Jersey,
James Kimball, Craig Ford, Carlos Antigua, Carlito Antigua,
United States District Judge Esther Salas, Judge Patty Shwartz,
former United States District Judge Dennis Cavanaugh, Joseph N.
Minish, Paul B. Matey, and Brian L. Urbano. He also names 1-50
unknown local, state, and government officials; 1-50 unknown
defendants acting under color of law; and 1-50 unknown law
enforcement defendants. Parties ¶¶ 7-9. The following factual
allegations are taken from the complaint and are accepted for
purposes of this screening only. The Court has made no findings
as to the truth of Plaintiff’s allegations.
3
Plaintiff alleges he was “kidnapped, human trafficked,
expatriated, forced into involuntary servitude labor and exiled
from the state of New Jersey’s personal jurisdiction” on January
23, 2007. Complaint ¶ 1. He states he received a phone call from
a family member asking about meeting Plaintiff at the hospital
where Plaintiff was going to have his back and hand examined.
Id. ¶ 3. Before Plaintiff could leave for the hospital, DEA
Agent Post arrived at Plaintiff’s location and told Plaintiff to
come with him. Id. ¶¶ 4-5. Post handcuffed Plaintiff, causing
further injury to Plaintiff’s hand in the process. Id. ¶ 5. Post
and other DEA agents then “executed an unlawful intrusion upon
the property.” Id. Post then attempted to get Plaintiff to wear
a wire and become an informant, but Plaintiff refused. Id. ¶ 6.
Post allegedly started threatening Plaintiff’s family members
after Plaintiff refused to become his informant. Id. Post and
the other agents then allegedly began placing Plaintiff’s
personal belongings into their van, all the while threatening
Plaintiff. Id. ¶ 7. Post and the other agents allegedly forced
Plaintiff into their van. Id. Post continued to tell Plaintiff
that he would “kidnap” Catrina Gatling, stating that unless
Plaintiff “admit[ted] to the crimes or [became] an informant,
she’s getting picked up.” Id.
Plaintiff claims that the DEA agents took Plaintiff to a
secret location in order to force him to become their informant
4
using his medical condition and Ms. Gatling as leverage. Id. ¶
8. Plaintiff asked for an attorney and told the agents that his
and Ms. Gatling’s children would be waiting for her, but Post
said “f**k your wife and kids, you should have thought of them.”
Id. Plaintiff alleges the agents engaged in a variety of
offenses, including fabrication of crime scene evidence, bribing
of confidential witnesses to fabricate evidence against
Plaintiff, threats against Plaintiff, using Plaintiff’s cell
phone and car, pretending to be Plaintiff’s cousin while
engaging in illegal activities, fabricating phone records to use
at trial, withholding discovery material, falsely telling the
jury Plaintiff confessed to the crimes, and holding Plaintiff
out to be a drug dealer. Id. ¶ 9. The agents allegedly would not
permit Plaintiff to call an attorney, saying that Ms. Gatling
would go to jail if they had to stop questioning Plaintiff. Id.
¶ 10. Plaintiff alleges Ms. Gatling signed a plea agreement in
order to avoid a long prison sentence that could cost her
custody of her children. Id.
Plaintiff alleges he and Ms. Gatling lost their careers,
homes, businesses, and other property, and have been wrongfully
incarcerated as a result of defendants’ unlawful actions. He
seeks monetary damages from all defendants and injunctive relief
in the form of “an injunctive order enjoining and prohibiting
the continual captivity, control, unlawfully obtained personal
5
jurisdiction being exercised upon Plaintiff[‘s] life, liberty,
and property. . . .” Relief ¶ 8.
III. ANALYSIS
A. Recusal
“When a judge or judicial nominee is named as a defendant
and his credibility or personal or financial interests are at
issue, all judges of the same district should recuse, unless the
litigation is patently frivolous or judicial immunity is clearly
applicable.” Judicial Conference of the United States, Committee
on Code of Conduct for United States Judges, Compendium of
Selected Opinions § 3.6-6[1](b) (2017). See also 28 U.S.C. §
455.
Because Petitioner named three judges of this Court
defendants in his complaint, Judge Esther Salas, Judge Patty
Shwartz,1 and former Judge Dennis Cavanaugh, this matter was
reallocated from the Newark Vicinage to the Camden Vicinage
pursuant to this Court’s January 13, 1994 Standing Order which
requires that, in all cases where a judge of this Court is named
as a party, the matter shall be assigned to a judge sitting in a
different vicinage of this Court than the one in which the named
1
Judge Shwartz is now a sitting judge of the United States Court
of Appeals for the Third Circuit, but Plaintiff’s complaint
appears to concern her time as a Magistrate Judge for this
District. Likewise, Judge Salas was a Magistrate Judge assigned
to Plaintiff’s criminal matter prior to her elevation.
6
judge sits. Judges Shwartz and Salas sit in Newark, as did Judge
Cavanaugh prior to his retirement. Pursuant to § 3.6-6 and the
standing order, this Court need not recuse if the assigned judge
determines the matter to be patently frivolous or if judicial
immunity is plainly applicable, but the Court must request
designation of a judge from outside of this District pursuant to
28 U.S.C. § 292(b) in the event the matter is neither frivolous
nor subject to judicial immunity. This is a specific application
of the broader ethical requirement that a judge “shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a).2
The Court finds that Plaintiff’s claims against the
judicial defendants are clearly barred by judicial immunity. “It
is a well-settled principle of law that judges are generally
'immune from a suit for money damages.’” Figueroa v. Blackburn,
208 F.3d 435, 440 (3d Cir. 2000) (quoting Mireles v. Waco, 502
U.S. at 11, 9, 112 S. Ct. 286 (1991)). “A judge will not be
deprived of immunity because the action he [or she] took was in
error, was done maliciously, or was in excess of his [or her]
2
The undersigned also acknowledges that recusal would be
mandatory where the judge “has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” 28 U.S.C. §
455(b)(1). The undersigned has no such personal knowledge or
bias, is unfamiliar with Plaintiff’s prior cases beyond the
public docket and has not discussed this case with any of the
defendants.
7
authority.” Stump v. Sparkman, 435 U.S. 349, 356 (1978); see
also Gallas v. Supreme Court of Pa., 211 F.3d 760, 769 (3d Cir.
2000) (“[I]mmunity will not be lost merely because the judge's
action is ‘unfair’ or controversial.”). “A judge is absolutely
immune from liability for his [or her] judicial acts even if his
[or her] exercise of authority is flawed by the commission of
grave procedural errors.” Stump, 435 U.S. at 359.
“[Judicial] immunity is overcome in only two sets of
circumstances.” Mireles, 502 U.S. at 11. “First, a judge is not
immune from liability for nonjudicial acts, i.e., actions not
taken in the judge's judicial capacity.” Id. In determining
whether an act qualifies as a “judicial act,” courts look to
“the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectation of the
parties, i.e., whether they dealt with the judge in his [or her]
judicial capacity.” Stump, 435 U.S. at 362. “Second, a judge is
not immune for actions, though judicial in nature, taken in the
complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.
Plaintiff’s claims against the judicial defendants arise
from his criminal proceedings, United States v. Telfair, Mag.
No. 06–3133, and Crim Nos. 07–0272 and 08-757 (D.N.J.).3 He
3
The earlier criminal case against Plaintiff in Crim. No. 070272 was dismissed without prejudice due to a violation of the
Speedy Trial Act. Id., Docket Entry 64. The Court notes that a
jury found Plaintiff guilty of conspiracy to distribute and
8
alleges the judicial defendants permitted false evidence to be
introduced at trial, abused their government power and
authority, and generally breached their constitutional duties
towards Plaintiff. Complaint § E (8). Plaintiff’s allegations of
bad faith and conspiracy do not deprive the judicial defendants
of their immunity as judicial immunity is not overcome by
allegations of bad faith or malice. Mireles, 502 U.S. at 11. As
Plaintiff’s complaint concerns the judicial defendants’ actions
in their judicial capacities as magistrate and district judges
during Plaintiff’s criminal proceedings, they are absolutely
immune from suit.4 All claims against the judicial defendants
will be dismissed with prejudice.
possess with intent to distribute heroin, as well as
distribution and possession with intent to distribute heroin,
after a trial before Judge Cavanaugh, who imposed a sentence of
240 months concurrently on each count in November 2011, which
was affirmed on appeal in 2012. See United States v. Telfair,
Crim. No. 08-757, Docket Entries 95, 98.
4 Judicial immunity does not bar prospective injunctive relief
against a judicial officer acting in his or her judicial
capacity, however. See Pulliam v. Allen, 466 U.S. 522, 542
(1984). However, the type of injunctive relief sought by
Plaintiff, orders prohibiting his “continual captivity,” is not
cognizable in a Bivens action. Plaintiff would have to seek this
relief in a habeas proceeding as it would affect the fact or
length of his sentence or confinement. See Preiser v. Rodriguez,
411 U.S. 475, 500 (1973). Designation of the matter under 28
U.S.C. § 292(b) and the 1994 Standing Order is therefore not
necessary because Plaintiff has not stated a potentially
meritorious claim against any of the judicial defendants. The
Court’s grant of leave to amend does not include any injunctive
relief against the judicial defendants as the proper procedure
if Plaintiff seeks to preclude a judge from sitting in a future
case would be a motion for that judge’s recusal, see 28 U.S.C. §
9
Because judicial immunity is clearly applicable to the
claims raised in Plaintiff’s complaint, Compendium § 3.6-6 and
the Standing Order of January 13, 1994 do not require recusal.
B. Propriety of Removal
On April 9, 2018, Plaintiff filed a document captioned
“Petition for Dismissal of Stranger’s Filings in the Civil Suit
of Citizen Tommie H. Telfair for Want of Jurisdiction Ab
Initio.” The Court considers this a motion for a remand back to
the state court. Motion to Remand, Docket Entry 3. Plaintiff
asserts removal was improper because counsel for defendants is
not a defendant in the civil action and has not made an
appearance in the Superior Court of New Jersey. Id. at 3. He
further argues the state court had never issued summonses in
connection with his suit and that defendants were never properly
served with the complaint. Id. Finally, he argues the Court
lacks subject matter jurisdiction over the complaint because
there is no case or controversy present. Id. at 3-4.5
Plaintiff’s motion to remand is without merit. The United
States Attorney removed this matter from the state court under
28 U.S.C. § 2679, “which provides that once the Attorney General
455, in the event one of the defendant judges is assigned to
Plaintiff’s case in the future.
5 To the extent Plaintiff asserts there is no live case or
controversy, the Court does not interpret this as an argument
that Plaintiff believes there is no injury that can be redressed
by the courts.
10
certifies that the employee-defendant was acting within the
scope of his employment with the United States, ‘any civil
action or proceeding commenced upon such claim in a State Court
shall be removed without bond at any time before trial’” to the
appropriate district court. Rivera-Carrion v. Miranda, 529 F.
Supp. 2d 296, 298 (D.P.R. 2008) (quoting 28 U.S.C. § 2679(d)(2))
(emphasis omitted). The Civil Division Chief of the U.S.
Attorney’s Office for the District of New Jersey has certified
Post, Hilton, and Greimal were acting in the scope of their
employment when the incidents giving rise to Plaintiff’s
complaint occurred.6 Removal was therefore proper under § 2679 as
the complaint was removed prior to trial in the state court. See
also Thompson v. Wheeler, 898 F.2d 406, 409 (3d Cir. 1990).
The Court has subject matter jurisdiction over the
complaint because Plaintiff raises claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, and the
United States Constitution. “[T]he district courts . . . shall
have exclusive jurisdiction of civil actions on claims against
the United States, for money damages . . . for injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
6
The Attorney General has delegated certification authority to
the United States Attorneys. 28 U.S.C. § 510; 28 C.F.R. §
15.4(a).
11
acting within the scope of his office or employment . . . .” 28
U.S.C. § 1346(b)(1). This Court therefore has exclusive
jurisdiction over Plaintiff’s FTCA claims.
Plaintiff’s motion for a remand back to the state court is
denied without prejudice as the complaint was properly removed
under 28 U.S.C. § 2679, and the Court has subject matter
jurisdiction over the complaint. If all federal claims are
adjudicated with finality, then Plaintiff may apply to have his
then-remaining state law claims against state officials remanded
to the Superior Court of New Jersey. Because Plaintiff is being
given the opportunity to attempt to amend certain federal claims
over which this Court would have federal question jurisdiction,
remand at this present time would be premature.
C. Motion to Dismiss
Having concluded recusal is not required and that the
matter was properly removed to federal court, the Court will now
address Defendants’ motion to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6). Defendants argue the
complaint is barred by res judicata and is a violation of an
order of preclusion issued by former Chief Judge Garrett Brown
in one of Plaintiff’s prior civil matters.
When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
12
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state
a claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, [w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (alterations in original) (internal
citations and quotation marks omitted). “[A] complaint's
allegations of historical fact continue to enjoy a highly
favorable standard of review at the motion-to-dismiss stage of
proceedings.” Id. at 790.
1. Estoppel
13
Defendants argue the claims raised in the complaint are
barred by the doctrines of claim and issue preclusion as “the
claims and issues sought to be precluded are the same involved
in the prior criminal proceeding, including the
constitutionality of his arrest, interrogation and prosecution,
and litigation in his post-conviction actions, and arise from
the same set of facts, i.e., Telfair’s arrest, interrogation and
conviction for heroin dealing.” Motion at 18. Defendants argue
that these “claims and issues were actually litigated in the
criminal case and post-conviction and habeas corpus litigation
and they were determined by a final and valid judgment.” Id.
“Claim and issue preclusion serve similar purposes; both
prevent litigation over issues that should have been or were
actually decided in a prior suit in order to foster ‘judicial
economy, predictability and freedom from harassment’ for
litigants.” Sibert v. Phelan, 901 F. Supp. 183, 186 (D.N.J.
1995). “Claim preclusion, formerly referred to as res judicata,
bars a claim litigated between the same parties or their privies
in earlier litigation where the claim arises from the same set
of facts as a claim adjudicated on the merits in the earlier
litigation.” St. Louis v. Haller, 215 F. Supp. 3d 307, 314 (D.
Del. 2016) (citing Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 276 (3d Cir. 2014)). “For claim preclusion to apply, there
must have been ‘[1] a final judgment on the merits in [2] a
14
prior suit involving the same parties or their privies, and [3]
a subsequent suit based on the same cause of action.’” Selkridge
v. United of Omaha Life Ins. Co., 360 F.3d 155, 172 (3d Cir.
2004) (quoting General Elec. Co. v. Deutz Ag, 270 F.3d 144, 158
(3d Cir. 2001)).
“[A] criminal prosecution necessarily involves a different
cause of action and different parties than any subsequent civil
suit, even though both proceedings may based on the same
underlying incidents. Therefore, the doctrine of res judicata
has no applicability in the subsequent civil action.” Murphy v.
Andrews, 465 F. Supp. 511, 512 (E.D. Pa. 1979). See also Sibert,
901 F. Supp. at 186 (“It is manifest that a defendant may not
assert a civil counterclaim in the context of a criminal
proceeding . . . .”); 18B Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice & Procedure § 4474 (2d ed.)
(“Claim preclusion does not extend from criminal prosecutions to
civil actions.”).
Issue preclusion, or collateral estoppel, will apply where
“(1) the identical issue was decided in a prior adjudication;
(2) there was a final judgment on the merits; (3) the party
against whom the bar is asserted was a party or in privity with
a party to the prior adjudication; and (4) the party against
whom the bar is asserted had a full and fair opportunity to
litigate the issue in question.” Bd. of Trustees of Trucking
15
Employees of N. Jersey Welfare Fund, Inc. - Pension Fund v.
Centra, 983 F.2d 495, 505 (3d Cir. 1992). “[I]ssue preclusion
does apply ‘in cases in which a convicted defendant sues the
government on a claim that is inconsistent with facts
established by the conviction.’” Sibert, 901 F. Supp. at 186
(quoting Federal Practice & Procedure § 4474). See also Emich
Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 568 (1951).
“[T]o determine the collateral estoppel effect of a
criminal judgment, the court in a subsequent civil action should
ascertain what was decided in the criminal case by examining the
record, the pleadings, the evidence submitted, and any judicial
opinions issued in the case.” Sec. & Exch. Comm'n v. Dimensional
Entm't Corp., 493 F. Supp. 1270, 1274 (S.D.N.Y. 1980) (citing
Emich Motors Corp, 340 U.S. at 569; United States v. Podell, 572
F.2d 31, 36 (2d Cir. 1978)). Defendants have not provided this
information to the Court as part of their motion. The Court is
therefore unable to determine which of the issues raised in the
complaint, if any, Plaintiff is estopped from challenging as a
matter of law.
2. Preclusion Order
To the extent Defendants argue the complaint violates a
preclusion order issued by former Chief Judge Brown in one of
16
Plaintiff’s prior civil rights actions,7 their argument is
meritless.
While his criminal case was ongoing, Plaintiff filed a
“grievance form” against the United States Attorney’s Office
alleging various actions taken against Ms. Gatling. Telfair v.
Office of the U.S. Attorney, No. 10-2958 (D.N.J. filed June 7,
2010). Chief Judge Brown dismissed the grievance for lack of
standing, and Plaintiff moved for reconsideration. In addressing
Plaintiff’s reconsideration motion, the court set forth in
detail Plaintiff’s civil ligation history in Telfair v. Tandy,
08-0731 (D.N.J. filed Feb. 7, 2008); Telfair v. Holder, No. 100048 (D.N.J. dismissed Feb. 24, 2010); and Telfair v. Holder,
09-2806 (D.N.J. administratively terminated June 25, 2009). In
re Telfair, 745 F. Supp. 536, 543-49 (D.N.J. 2010), vacated in
part sub nom. Telfair v. Office of U.S. Attorney, 443 F. App’x
674 (3d Cir. 2011). The court concluded that the filing was “a
disguised attempt to relitigate, before this Court, the matters
that were adjudicated by other Judges in the District” and
stated “that to the extent Telfair wishes to challenge his
criminal conviction or his upcoming penal sentence, these
7
As noted by Defendants, Plaintiff has an extensive litigation
history in the District of New Jersey. The Court takes judicial
notice of the public records of Plaintiff’s litigation history
and sets forth a brief recitation in order to provide the
context for Chief Judge Brown’s preclusion order and why it is
not a valid reason to dismiss the complaint.
17
challenges can be raised only by means of direct appeal or by
filing a habeas application, pursuant to 28 U.S.C. § 2255.” Id.
at 559.
After a lengthy discussion of the claims raised in the
“grievance form,” Chief Judge Brown concluded that “[i]n light
of the multitude, volume and content of Telfair's submissions in
this matter and in [his civil filings], this Court must select a
proper means to control Telfair's litigation practices.” Id. at
581. To that end, the court issued the order requiring Plaintiff
to seek leave of the presiding judges before making any pro se
submission in his currently pending cases. The order also
required Plaintiff to obtain permission from the Clerk before
filing any new civil actions while proceeding pro se and in
forma pauperis. Complaints alleging imminent danger and motions
under 28 U.S.C. § 2255 were exempted from the order. Id. at 58587. See also Motion to Dismiss Exhibit 2.
On appeal, the Third Circuit vacated the limited order of
preclusion. Although the court of appeals agreed that “Telfair's
litigation practices likely constitute[d] an abuse of the
judicial system, warranting a limitation on his access to the
courts,” it found Plaintiff had not been given sufficient notice
and a chance to answer before the district court entered the
preclusion order. Telfair, 443 F. App'x at 677. It remanded for
further proceedings in the district court.
18
The preclusion order entered by Chief Judge Brown was
vacated by the Third Circuit and was never reinstated after the
remand.8 Even if the order had not been vacated on appeal, it
would not apply to the current action because Plaintiff did not
file the current action in federal court. The order placed no
restrictions on his state court filings.
The motion to dismiss is denied.
D. Review Under 28 U.S.C. § 1915A
Although the Court will not dismiss the complaint on
Defendants’ motion, it must still consider whether dismissal is
warranted under the Prison Litigation Reform Act, Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996) (“PLRA”).
Per the PLRA, district courts must “review . . . as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. §
1915A(a). Because Plaintiff is a prisoner seeking redress from
government officials, the Court must sua sponte dismiss any
8
Judge Martini stayed and administratively terminated one of
Plaintiff’s complaints pending the result of his criminal trial.
Telfair v. Tandy, 08-0731(D.N.J. order of administrative
termination July 28, 2011). The order also required Plaintiff to
show cause why the order of preclusion should not be enacted,
but it does not appear that a preclusion order was entered
thereafter.
19
claim that is frivolous, is malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from
a defendant who is immune from such relief even though this
matter was removed from state court and Plaintiff is not
proceeding in forma pauperis. 28 U.S.C. § 1915A(b)
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,9 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, they “still must allege
9
“[T]he legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915A is identical to the legal
standard employed in ruling on 12(b)(6) motions.” Courteau v.
United States, 287 F. App'x 159, 162 (3d Cir. 2008) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
20
sufficient facts in their complaints to support a claim.”
Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).
On the whole, Plaintiff’s complaint fails to state a claim
upon which relief may be granted. Except for his claims against
Post and the other DEA agents, the complaint lacks any factual
support for his allegations even after giving him the benefit of
all reasonable inferences and liberal construction owed to pro
se plaintiffs. “[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
is especially true of his fraud claims, which have a heighted
pleading standard. See Fed. R. Civ. P. 9(b) (“In alleging fraud
or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”); In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1418 (3d Cir. 1997)
(“Rule 9(b)'s heightened pleading standard gives defendants
notice of the claims against them, provides an increased measure
of protection for their reputations, and reduces the number of
frivolous suits brought solely to extract settlements.”).
Plaintiff’s generalized allegations of constitutional
violations and tortious conduct are not enough to state claims
under Iqbal’s pleading standards. The complaint is therefore
21
subject to dismissal for failure to state a claim because
Plaintiff does not provide sufficient facts for the Court to
plausibility infer defendants’ liability.
In addition to failing to meet the pleading standards under
Iqbal, the complaint contains the following deficiencies.
1. Claims on Behalf of Gatling
Plaintiff purports to file this complaint on behalf of
himself and Ms. Gatling. Complaint ¶ 11. Ms. Gatling has not
signed the complaint and there is no indication she is even
aware it has been filed. As Chief Judge Brown previously told
Plaintiff when he tried to raise claims on Ms. Gatling’s behalf,
“under the ‘next friend’ doctrine, standing is allowed to a
third person only if this third person could file and pursue a
claim in court on behalf of someone who is unable to do so on
his/her own.” In re Telfair, 745 F. Supp. 2d 536, 560 (D.N.J.
2010), aff'd in part, vacated in part sub nom. Telfair v. Office
of U.S. Attorney, 443 F. App'x 674 (3d Cir. 2011).
The Supreme Court has set forth two requirements for
asserting “next friend” standing: “(a) ‘the next friend must be
truly dedicated to the best interests of the person on whose
behalf [(s)he] seeks to litigate’ . . .; and (b) ‘the next
friend must provide an adequate explanation — such as
inaccessibility, mental incompetence, or other disability — why
the real party in interest cannot appear on his [/her] own
22
behalf to prosecute the action.’” Id. (quoting Whitmore v.
Arkansas, 495 U.S. 149, 163-64 (1990)) (alterations in
original). “The burden is on the ‘next friend’ to justify
his/her status and, thereby, to obtain the jurisdiction of the
federal courts.” Id.
Giving Plaintiff the benefit of the doubt on the first
requirement, there is no indication Ms. Gatling is somehow
unable to appear on her own behalf. Plaintiff therefore lacks
standing to pursue this complaint on her behalf, and all of the
claims purportedly brought on behalf of Ms. Gatling are
dismissed for lack of standing.
2. Federal Tort Claims Act
The complaint raises claims under FTCA, see Complaint § H,
which may only be brought against the United States. See 28
U.S.C. § 2679(b)(1); Osborn v. Haley, 549 U.S. 225, 229 (2007)
(“The Federal Employees Liability Reform and Tort Compensation
Act of 1988, commonly known as the Westfall Act, accords federal
employees absolute immunity from common-law tort claims arising
out of acts they undertake in the course of their official
duties.”); Lomando v. United States, 667 F.3d 363, 378 (3d Cir.
2011) (citing H.R. Rep. No. 100–700, at 6, 1988 U.S.C.C.A.N.
23
5945 at 5950).10 The FTCA claims are dismissed with prejudice as
to all defendants other than the United States.
Before filing a suit in federal court, a plaintiff suing
under the FTCA must present the offending agency with notice of
the claim, including a “sum certain” demand for monetary
damages. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457
(3d Cir. 2010). “Because the requirements of presentation and a
demand for a sum certain are among the terms defining the United
States's consent to be sued, they are jurisdictional.” Id.
(citing United States v. Sherwood, 312 U.S. 584, 587 (1941)).
These requirements cannot be waived. Id. (citing Bialowas v.
United States, 443 F.2d 1047, 1049 (3d Cir. 1971)). “The FTCA
bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.” McNeil v. United
States, 508 U.S. 106, 113 (1993); see also Shelton v. Bledsoe,
775 F.3d 554, 569 (3d Cir. 2015). Exhaustion occurs when either
the agency denies the claim, in which case plaintiffs must file
suit within six months, or six months have passed without a
written denial of the claim. 28 U.S.C. §§ 2401(b), 2675(a). The
10
As noted previously, the Civil Division Chief for the United
States Attorney’s Office for the District of New Jersey has
certified pursuant to 28 C.F.R. § 15.4(a) that Post, Hilton, and
Greimal were acting within the scope of their employment at the
time of the conduct alleged in the complaint. The Court shall
therefore order the Clerk to add the United States as a
defendant in this matter on the FTCA claims. 28 U.S.C. §
2679(d)(1).
24
exhaustion requirement is mandatory, jurisdictional, and is
applicable to all FTCA plaintiffs regardless of their pro se or
incarcerated status. Shelton, 775 F.3d at 569; Wadhwa v.
Nicholson, 367 F. App'x 322, 325 n.5 (3d Cir. 2010) (“McNeil
clarified that administrative exhaustion must be complete before
instituting suit, and that this procedural rule is a requirement
to which all litigants must adhere.” (emphasis in original)).
Here, Plaintiff’s complaint is devoid of any indication he
served the required notice of claim form. The Court therefore
cannot ascertain it has jurisdiction over the FTCA claims and
will dismiss the FTCA claims without prejudice.11
3. Heck v. Humphrey
Plaintiff’s complaint raises claims against various federal
and state officials and law enforcement officers under 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971) for their roles in
11
The Court further notes that Plaintiff’s FTCA claims appear to
be barred by the statute of limitations. “A tort claim against
the United States shall be forever barred unless it is presented
in writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six
months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C. § 2401(b). “[B]oth
limitations periods under § 2401(b) must be satisfied in order
for an FTCA complaint to be timely.” Seiss v. United States, 792
F. Supp. 2d 729, 732 (D.N.J. 2011). If Plaintiff elects to amend
his complaint and seeks to include FTCA claims, he may only
include claims that satisfy both provisions of § 2401(b).
25
Plaintiff’s federal arrest and subsequent conviction. He alleges
defendants denied him an attorney, committed generalized fraud,
fabricated evidence, lied at trial, failed to properly train
their subordinates to avoid these violations, failed to
intervene,12 and generally conspired to “kidnap, human traffic,
and expatriate” him as well as deprive him of his constitutional
rights under the first Nineteen Amendments of the Constitution.
See Complaint §§ D-I. These claims are presently barred by Heck
v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that before a § 1983
plaintiff may “recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid,” he must first “prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
12
To plead a failure to intervene claim, Plaintiff must plead
facts indicating that: (1) the officer failed or refused to
intervene when a constitutional violation took place in his
presence or with his knowledge; and (2) there was a “realistic
and reasonable opportunity to intervene.” Smith v. Mensinger,
293 F.3d 641, 650–51 (3d Cir. 2002). Failure to intervene would
be barred by Heck under this particular set of facts because
success on this claim would mean Plaintiff has shown that
defendants intended to deprive him of rights or knew about the
deprivation of rights that would invalidate Plaintiff’s
convictions. See Cook v. City of Phila., 179 F. App'x 855, 859
(3d Cir. 2006) (per curiam) (holding failure to intervene claims
were barred by Heck). See Complaint § I.
26
determination, or called into question by a federal court's
issuance of a writ of habeas corpus[.]” Id. at 486-87; see also
Bronowicz v. Allegheny Cty., 804 F.3d 338, 346 (3d Cir. 2015)
(“‘[A] prior criminal case must have been disposed of in a way
that indicates the innocence of the accused in order to satisfy
the favorable termination element.’” (alteration in original)
(quoting Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir.
2009))). Heck's holding has been applied to bar Bivens claims as
well as § 1983 claims. See Lora–Pena v. FBI, 529 F.3d 503, 506
n.2 (3d Cir. 2008) (per curiam).
The Court takes judicial notice of the public record of
Plaintiff’s judgment of conviction entered on November 23, 2011.
United States v. Telfair, No. 08-757 (D.N.J. Nov. 23, 2011),
Docket Entry 95, aff’d, App. No. 11-3456 (3d Cir. Dec. 12,
2012). The Court also takes judicial notice of the public record
of orders denying his motion under 28 U.S.C. § 2255. Telfair v.
United States, No. 13-6585 (D.N.J. Feb. 17, 2016), Docket Entry
37; (Sept. 25, 2017) Docket Entry 59. The defendants in this
matter are judges, defense attorneys, Assistant United States
Attorneys, federal agents, state officers, and witnesses that
were all involved in Plaintiff’s arrest, trial, and appeal.
Plaintiff’s complaint makes general allegations of
constitutional violations and contains very little in the way of
actual facts, but from the facts presented it is clear that the
27
substance of the complaint is a challenge to the validity of his
criminal conviction and would bring the validity of his
conviction into question were he to succeed on the merits. In
addition to the monetary damages, he asks the Court to issue
permanent injunctive relief in the form of “an injunctive order
enjoining and prohibiting the continual captivity, control,
unlawfully obtained personal jurisdiction being exercised upon
Plaintiff[‘s] life, liberty, and property. . . .” Relief ¶ 8.13
This is a direct attack upon his conviction, which is
unavailable under any civil cause of action brought in this
case. As such, Plaintiff cannot bring the majority of the claims
raised in his complaint unless and until his convictions have
been overturned.
4. Denial of Medical Care
Portions of the complaint could also broadly be construed
as alleging denial of medical care. Complaint § F. Plaintiff
alleges unspecified defendants ignored his “paralysis, forcing
[him] to endure massive aches, pains, and retaliatory treatment
over time,” Complaint § F (2), and he claims he failed to
receive unspecified necessary treatment and surgeries, causing
him to urinate blood, id. § D(9). Although not clear, the Court
13
As stated supra note 4, this type of relief is not available
in a civil rights action. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973).
28
presumes Plaintiff was a pre-trial detainee at the time of the
alleged denial of care, meaning his claim would be analyzed
under the Fourteenth Amendment. Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 581 (3d Cir. 2003).
The Due Process Clause of the Fourteenth Amendment “affords
pretrial detainees protections at least as great as the Eighth
Amendment protections available to a convicted prisoner . . .
Id. (internal quotation marks omitted). Plaintiff must therefore
provide facts in his complaint indicating “(i) a serious medical
need, and (ii) acts or omissions by prison officials that
indicate deliberate indifference to that need.” Id. at 582.
Plaintiff’s complaint does not provide sufficient facts for
either of these elements. Plaintiff does not indicate how the
named defendants, who do not appear to be officials in charge of
providing medical care at the facilities where Plaintiff was
detained, denied him medical care, what necessary treatment he
was denied, what injury followed, and what facts support an
inference of deliberate indifference. These claims are dismissed
without prejudice.
5. Municipal Liability
Plaintiff also attempts to raise a claim of municipal
liability,14 Complaint § J, but it does not appear that he named
14
See generally Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978).
29
any municipality as a defendant. The State of New Jersey is not
subject to municipal liability as it is immune from suit in
federal court for money damages under 42 U.S.C. § 1983. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).
Plaintiff’s claims under 42 U.S.C. §§ 1985 and 1986 will be
dismissed without prejudice as well. “Section 1985(3)
establishes a cause of action against any person who enters into
a private conspiracy for the purpose of depriving the claimant
of the equal protection of the laws.” Rogin v. Bensalem Twp.,
616 F.2d 680, 696 (3d Cir. 1980). In order to state a § 1985(3)
claim, a plaintiff must allege:
(1) a conspiracy; (2) motivated by a racial or class
based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons
to the equal protection of the laws; (3) an act in
furtherance of the conspiracy; and (4) an injury to
person or property or the deprivation of any right or
privilege of a citizen of the United States.
Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997), as amended
(May 15, 1997). Plaintiff’s complaint does not have sufficient
facts for a plausible inference that any conspiracy was
“motivated by a racial or class based discriminatory animus.” As
§ 1986 claims require a preexisting violation of § 1985, the §
1986 claims will be dismissed without prejudice as well. See
Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994); Rogin, 616
F.2d at 696.
E. Statute of Limitations
30
Plaintiff raises claims of illegal search and seizure under
the Fourth Amendment. To the extent they are based on the events
of January 23, 2007, they are barred by the statute of
limitations. Complaint § G(6).
“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte . . . for failure to state a claim.” Ostuni v. Wa Wa's
Mart, 532 F. App’x 110, 111–12 (3d Cir. 2013) (per curiam).
Section 1983 and Bivens claims are governed by New Jersey's
limitations period for personal injury and must be brought
within two years of the claim's accrual. See Wilson v. Garcia,
471 U.S. 261, 276 (1985); Dique v. New Jersey State Police, 603
F.3d 181, 185 (3d Cir. 2010); Hughes v. Knieblher, 341 F. App'x
749, 752 (3d Cir. 2009) (“[T]he statute of limitations for
Bivens claims is taken from the forum state's personal injury
statute.”). “Under federal law, a cause of action accrues ‘when
the plaintiff knew or should have known of the injury upon which
the action is based.’” Montanez v. Sec'y Pa. Dep't of Corr., 773
F.3d 472, 480 (3d Cir. 2014) (quoting Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009)).
Plaintiff’s illegal search and seizure claims accrued on
the date of the search: January 23, 2007. See Woodson v. Payton,
31
503 F. App'x 110, 112 (3d Cir. 2012) (holding statute of
limitations began on date when plaintiff “indisputably knew
about the alleged faults of search and seizure”). Plaintiff’s
complaint was due on January 23, 2009 at the latest. He did not
file the complaint in state court until August 3, 2017, eight
years too late. As there are no grounds for equitable tolling of
the statute of limitations, these claims are dismissed with
prejudice as barred by the statute of limitations. Ostuni v. Wa
Wa's Mart, 532 F. App’x 110, 112 (3d Cir. 2013) (per curiam)
(affirming dismissal with prejudice due to expiration of statute
of limitations).
Plaintiff’s false arrest, false imprisonment, and pre-trial
detention claims are likewise barred by the statute of
limitations. “The Fourth Amendment prohibits government
officials from detaining a person in the absence of probable
cause.” Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 913
(2017). “[W]here the police lack probable cause to make an
arrest, the arrestee has a claim under § 1983 for false
imprisonment based on a detention pursuant to that arrest.”
O'Connor v. City of Phila., 233 F. App’x 161, 164 (3d Cir. 2007)
(internal quotation marks and citation omitted). False arrest
claims accrue at the time of arrest, and “[a] claim of false
imprisonment accrues when a person is detained without legal
process (the claims ends once that person is held pursuant to
32
legal process, such as when a person is bound over by a
magistrate or arraigned on charges).” LeBlanc v. Snavely, 453 F.
App'x 140, 142 (3d Cir. 2011) (citing Wallace v. Kato, 549 U.S.
384, 389-90 (2007)). A plaintiff may also bring a pre-trial
detention claim under the Fourth Amendment for the time spent in
custody up until the time of trial. “[O]nce a trial has
occurred, the Fourth Amendment drops out: A person challenging
the sufficiency of the evidence to support both a conviction and
any ensuing incarceration does so under the Due Process Clause
of the Fourteenth Amendment.” Manuel, 137 S. Ct. at 920 n.8.
Here, Plaintiff was arrested on January 23, 2007 and sentenced
on November 23, 2011. Thus, any claims Plaintiff had under the
Fourth Amendment became time-barred as of November 23, 2013 at
the very latest, well before he filed his complaint in state
court. These claims are dismissed with prejudice
F. Criminal Statutes
Plaintiff also alleges violations of 18 U.S.C. § 1001
(false claims); 18 U.S.C. § 1512 (tampering with a witness,
victim, or informant); 18 U.S.C. §§ 241, 242 (conspiracy to
violate rights, deprivation of rights). Plaintiff cannot bring
criminal charges in this Court; that power lies solely with the
executive branch. See Dicent v. Sears Holdings, No. 3:17-CV-332,
2017 WL 1045066, at *5 (M.D. Pa. Feb. 27, 2017) (citing cases),
report and recommendation adopted, No. 3:17-CV-00332, 2017 WL
33
1042470 (M.D. Pa. Mar. 17, 2017). See also Sheehy v. Brown, 335
F. App’x 102, 104 (2d Cir. 2009) (summary order) (“[C]laims
based on the violation of federal criminal statutes, such as 18
U.S.C. §§ 241-242[ ] . . . are not cognizable, as federal
criminal statutes do not provide private causes of action.”)
These claims are dismissed as legally frivolous because they
lack “an arguable basis ... in law.” Neitzke v. Williams, 490
U.S. 319, 325 (1989). 28 U.S.C. § 1915A(b)(1).
G. State law claims
To the extent the complaint raises state law claims, the
Court will exercise supplemental jurisdiction over the claims,
28 U.S.C. § 1367, but will dismiss for failure to state a claim,
28 U.S.C. § 1915A(b)(1). Plaintiff makes vague allegations of
intentional infliction of emotional distress and negligent
training and supervision by state officers and the State of New
Jersey. See Complaint § F.
“Under New Jersey law, liability may be imposed on an
employer who fails to perform its duty to train and supervise
its employees.” Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716,
721 (D.N.J. 2010) (citing Tobia v. Cooper Hosp. Univ. Med. Ctr.,
643 A.2d 1, 6 (N.J. 1994)). Negligent training and supervision
claims are “separate from a claim based on respondeat superior.”
Hoag v. Brown, 935 A.2d 1218, 1230 (N.J. Super. Ct. App. Div.
2007). “An employer, however, is liable for negligent
34
supervision only if all the requirements of an action of tort
for negligence exists.” Dixon v. CEC Entm't, Inc., No. A-201006, 2008 WL 2986422, at *18 (N.J. Super. Ct. App. Div. Aug. 6,
2008) (citing Restatement (Second) of Agency, § 213(c) cmmt. a
(1957)).
Therefore to sufficiently plead negligent training and
supervision claims, Plaintiff must set forth specific facts
indicating (1) defendants owed a duty of care to plaintiff, (2)
defendants breached that duty of care, (3) defendants’ breach
was the proximate cause of Plaintiff's injury, and (4)
defendants' breach caused actual damages to Plaintiff. The
complaint does not contain sufficient facts to meet Iqbal’s
pleading standard for the negligence claims.
Plaintiff’s intentional infliction of emotional distress
claim is likewise insufficiently pled. “In order to state such a
cause of action, ‘plaintiff must establish intentional and
outrageous conduct by the defendant, proximate cause, and
distress that is severe.’” Taylor v. Metzger, 509, 706 A.2d 685,
694 (N.J. 1998) (quoting Buckley v. Trenton Sav. Fund Soc’y, 544
A.2d 857, 863 (1988)). “For an intentional act to result in
liability, the defendant must intend both to do the act and to
produce emotional distress. Liability will also attach when the
defendant acts recklessly in deliberate disregard of a high
degree of probability that emotional distress will follow.”
35
Buckley, 544 A.2d at 863 (internal citations omitted). The
conduct must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community” and “the emotional distress suffered by the plaintiff
must be so severe that no reasonable man could be expected to
endure it.” Id. (internal citations and quotation marks
omitted).
Plaintiff has not provided sufficient facts to plausibly
infer a cause of action against defendants. The state claims
will be dismissed without prejudice along with the federal
claims, and Plaintiff may attempt to amend them in an amended
complaint by including additional facts to address the
deficiencies in the elements of the causes of action.15
H. Assorted Statutes
Finally, Plaintiff cites assorted statutes that do not
state a claim on which relief may be granted based upon the
circumstances of the complaint. Plaintiff does not allege any
15
Plaintiff is further advised that New Jersey’s statute of
limitations for tort actions is two years, N.J. STAT. ANN. §
2A:14-2(a), and Plaintiff must have provided public agencies and
employees with notice of his tort claims within 90 days of the
incident under the New Jersey Tort Claims Act. N.J. STAT. ANN. §
59:8-3. See also N.J. STAT. ANN. § 59:8-8. The notice requirement
applies to common law intentional tort claims as well as
negligent conduct. Velez v. City of Jersey City, 850 A.2d 1238
(N.J. 2004).
36
factual or legal basis to support claims under 42 U.S.C. §§
1981, 1982, 1987, 1988; 28 U.S.C. §§ 1495, 2513; 34 U.S.C. §
12601;16 or 5 U.S.C. § 702 et. seq. Accordingly, these claims
will be dismissed for failure to state a claim.
I. Leave to Amend
Generally, under the Prison Litigation Reform Act,
“dismissal without leave to amend is justified only on the
grounds of bad faith, undue delay, prejudice, or futility.”
Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). As Plaintiff
may be able to plead facts supporting his denial of medical care
and FTCA claims, the Court will grant leave to amend. Any claim
for denial of medical care must name only the persons causing
this deprivation and must address the deficiencies noted in Part
III.D.4 above. Any claim under the FTCA may name only the United
States as a defendant and must cure the deficiencies noted in
Part III.D.2 above. Plaintiff may move to amend his complaint
within 30 days of this opinion and order. Any motion to amend
must include a proposed amended complaint which shall be subject
to screening by this Court. No claim may be raised that arose
more than two years before Plaintiff filed his Complaint in the
Superior Court of New Jersey, which is believed to be August 3,
2017, unless Plaintiff alleges factual grounds to enlarge the
16
Formally cited as 42 U.S.C. § 14141.
37
limitations period for equitable reasons. Plaintiff may not
include claims that have been dismissed with prejudice in his
amended complaint, nor any claim that has been litigated and
dismissed in a prior case. No claims may be asserted on behalf
of Ms. Gatling unless she represents herself or is represented
by a lawyer, and the same limitations upon any amended complaint
apply to Ms. Gatling as discussed above as to Mr. Telfair.
V.
CONCLUSION
For the reasons stated above, the motion of defendants
Post, Hilton, and Greimal to dismiss and Plaintiff’s motion to
remand are denied. The claims against the judicial defendants
(Judges Shwartz, Salas, and former Judge Cavanaugh), the illegal
search claims for the January 23, 2007 search, and Plaintiff’s
criminal claims are dismissed with prejudice. The remainder of
the complaint is dismissed without prejudice against all
remaining defendants for failure to state a claim. This docket
will be closed. Any proposed amended complaint must be submitted
within 30 days and will be subject to preliminary screening
under 28 U.S.C. § 1915A.
An appropriate order follows.
June 20, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
38
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