TELFAIR et al v. OFFICE OF THE U.S. ATTORNEY
Filing
18
OPINION "SERVICE FOR INFORMATIONAL PURPOSES ONLY". Signed by Judge William J. Martini on 6/23/11. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TOMMIE H. TELFAIR,
Plaintiff,
v.
KAREN P. TANDY, et al.
Defendants.
:
:
:
:
:
:
:
:
:
:
:
Civil Action No.
08-0731 (WJM)
O P I N I O N
MARTINI, District Judge:
This matter comes before the Court upon Plaintiff’s filing
of a slew of motions, letters, notices and analogous documents,
see Docket Entries Nos. 43-68 and 70-72, submitted after this
Court’s grant of summary judgment as to some Defendants.
Docket Entries Nos. 41-42.
See
For the reasons detailed below: (a)
Plaintiff’s above-listed submissions will be dismissed; (b) stay
as to Plaintiff’s claims previously stayed by the Court will be
extended; (c) Plaintiff’s claims proceeded past sua sponte
dismissal and not disposed of in the Court’s summary judgment
decision will be dismissed without prejudice, and Plaintiff will
be directed to file a clear and concise amended pleading; (d) the
limited order of preclusion imposed upon Plaintiff will be
adopted for ninety days; and (e) Plaintiff will be ordered to
show cause as to why the order of preclusion should not govern
the remainder of this matter and Plaintiff’s future non-emergent
pro se, in forma pauperis civil actions in this District.
I.
BACKGROUND
Plaintiff’s instant action appears to be both the first
civil rights action commenced by Plaintiff in this District and
his sole currently pending civil rights action.
Other actions,
instituted against or by Plaintiff, as well as the proceedings
instituted against a certain Catrina R. Gatling (“Gatling”),
Plaintiff’s former girlfriend, are closely related to the case at
bar.
Therefore, a brief overview of these actions and a summary
of the instant matter appear helpful.
A.
Other Actions in This District
A detailed overview of the criminal proceedings instituted
against Plaintiff and Gatling, as well as all civil actions
commenced by Plaintiff in this District, was already conducted in
In re Telfair, 745 F. Supp. 2d 536 (D.N.J. 2010), a decision
providing citations to all relevant docket entries in each such
action.
Therefore, a brief summary should suffice.
The events that gave rise to Plaintiff’s criminal
prosecution began to unfold on September 5, 2006, when police was
dispatched to investigate a report of gunfire at a certain
residence in Newark, New Jersey.
See id. at 538. Upon seeing
several bullet holes in the back door and empty shell casings
nearby, police entered the residence with consent of two
occupants.
See id.
A search of the residence produced large
amounts of various controlled substances.
2
See id.
The occupants
stated that the substances belonged to an individual named
“Hassan Gatling,” which was Plaintiff’s alias; they also stated
that they were employed by Plaintiff to pack these substances,
seemingly, for retail sale.
See id.
Consequently, an arrest
warrant was issued as to Plaintiff on September 8, 2006, and –
four and a half months later, i.e., on January 23, 2007 - he was
arrested at the home of Gatling, who was, by then, notified by
the law enforcement authorities that Plaintiff was subject to
arrest warrant and, hence, knew that she was harboring a felon.
See id.
Plaintiff was indicted (and then re-indicted, twice) on
drug-related offenses.
See id.
Plaintiff initially retained a certain Paul Bergrin
(“Bergrin”) as his defense counsel.
See id.
However, Plaintiff
swiftly terminated Bergrin’s representation, and a certain James
Kimball (“Kimball”), a CJA attorney, was appointed to represent
Plaintiff.
See id. at 540.
Not long thereafter, Plaintiff
terminated Kimball’s appointment, and a certain Michael Pedicini
(“Pedicini”), another CJA attorney, took over.
See id. at 541.
Plaintiff sent threatening letters to Kimball and Pedicini and
filed disciplinary grievances against Bergrin, Kimball and
Pedicini with the Office of Attorney Ethics (“OAE”); in addition,
Plaintiff instituted legal malpractice suits against Pedicini and
Bergrin (and, potentially, against Kimball too).
3
See id. at 541-
46.
He also filed disciplinary grievances with the OAE against
his prosecutors.
See id. at 565-66.
When Plaintiff’s then-latest defense counsel, that is,
Pedicini, learned about Plaintiff’s legal malpractice suit
against him, Pedicini resigned to avoid conflict of interest.
See id. at 565.
his jury.
By that time, Plaintiff was already convicted by
See id. at 543.
During pre-sentencing stages of his criminal prosecution,
Plaintiff - while being represented by three different defense
attorneys1 – filed in his criminal docket fifty-one pro se
applications, including motions, petitions and various letters
(many of which replicated each other many times over) totaling
one thousand one hundred thirty six pages; some of these
submissions made allegations against this Court and referred to
the instant proceedings.2
See id. at 541, 583-84.
Meanwhile, Gatling was charged with harboring a felon,
released on bail on the day of her arrest and, eventually, pled
guilty.
See id. at 550-51.
1
Since Plaintiff’s criminal proceedings are still underway
(being at the sentencing stage), Plaintiff is now represented by
his fourth defense counsel, another CJA attorney, John A.
Azzarello (“Azzarello”). See USA v. Telfair, Crim. Action No.
08-cr-0757 (DMC) (D.N.J.), Docket Entry No. 79.
2
Although Judge Dennis M. Cavanaugh (“Judge Cavanaugh”),
presiding over Plaintiff’s criminal prosecution, twice ordered
the Clerk to refuse acceptance of any Plaintiff’s pro se
submissions, these orders failed to halt Plaintiff’s filings.
4
About a year after his arrest, and while still awaiting
resolution of his criminal proceedings, Plaintiff initiated the
instant matter, pursuant to Bivens v. Six Unknown Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).3
A year later, he
initiated another Bivens action, challenging the same
transactions and, in addition, raising premature § 2255 habeas
challenges; another year later, he commenced one more Bivens
action challenging the same.
See id. at 549.
Plaintiff’s
complaints in those two matters yielded seventy eight pages.4
See id. at 587.
On June 3, 2010, Plaintiff filed a series of documents
mimicking a disciplinary grievance submitted on behalf of himself
and Gatling.
See id. at 551-60.
Although this set of
submissions was reduced to mere four docket entries, it yielded
three hundred forty two pages, many of which replicated one
another over and over again.
See id. at 584.
This set of
submissions was determined to be not a bona fide ethics
3
As of this Court’s issuance of this Memorandum Opinion
and accompanying Order, Plaintiff’s submissions accounted for
forty-nine docket entries in this matter, totaling one thousand
and seventeen pages, many of which replicated each other many
times over. See generally, Instant Action, Docket. The content
of these submissions is discussed infra.
4
Plaintiff’s actions raising Bivens challenges
substantively identical to those raised in this matter were
dismissed as duplicative (with Plaintiff’s § 2255 challenges
dismissed as premature). See Telfair v. Holder, Civ. Action No.
10-0048 (DMC) (D.N.J.), and Telfair v. Holder, Civ. Action No.
09-2806 (SDW) (D.N.J.).
5
application but a mix of: (a) Plaintiff’s Bivens claims repeating
the challenges at the heart of the instant matter; (b) habeaslike claims; and (c) § 1983 allegations raised without proper
standing on behalf of Gatling.
See Telfair et al. v. Office of
the U.S. Attorney, Civ. Action No. 10-2958 (GEB) (D.N.J.).
The
decision dismissing these claims and declining to initiate a
disciplinary investigation in this District also imposed a
limited order of preclusion upon Plaintiff.
Entries Nos. 7 and 8.
a.
See id., Docket
Pursuant to that limited preclusion order:
in any currently pending action, such as the instant matter,
Plaintiff was directed to seek leave from the presiding
judge to make any unauthorized pro se submission; he was
directed to do so by filing a one-page request averring that
Plaintiff wished to raise bona fide new challenges and
summarizing, clearly and concisely, the what exactly he
wished to assert;5
and
5
It appears that the limited order of preclusion relaxed,
in a way, Judge Cavanaugh’s bar on the Clerk’s acceptance of
Plaintiff’s pro se submissions by allowing Plaintiff to make such
filings upon obtaining leave from Judge Cavanaugh with regard to
each proposed pro se filing. Plaintiff, however, failed to
comply with the limited order of preclusion directing him to seek
leave from Judge Cavanaugh. See USA v. Telfair, Crim. Action No.
08-cr-0757 (DMC) (D.N.J.), Docket Entries Nos. 78, 81 and 82
(reflecting Plaintiff’s unauthorized pro se filings made in his
criminal matter after the entry of the preclusion order).
6
b.
with regard to any future civil rights action filed in this
District pro se and in forma pauperis (except for emergent
Bivens actions), Plaintiff was directed to seek leave from
the Clerk to commence such action; he was directed to do so
by filing a one-page request averring that Plaintiff wished
to raise bona fide new claims and summarizing facts of
Plaintiff’s proposed challenges clearly and concisely.
See id., Docket Entry No. 8.
B.
Plaintiff’s Appellate Challenges
While Plaintiff filed numerous appeals with regard to his
still-ongoing criminal prosecution and with regard to the instant
matter, his only appellate proceeding pending at this juncture is
the one filed with regard to Plaintiff’s submissions mimicking a
disciplinary grievance.
See Telfair et al. v. Office of US
Attorney, USCA Civ. Action No. 10-4193 (3d Cir.).
In that appeal, Plaintiff filed a forty-eight-page “Notice
to the Appellate Court, In Support of Due Process Violations, and
Deliberate Indifference to the Constitution.”
Entry dated Apr. 5, 2011 (“Notice”).6
6
See id., Docket
Plaintiff also filed the
In addition to the Notice, Plaintiff also filed, in his
currently pending appellate proceedings: (a) a twenty-five-page
“Response,” see Telfair et al. v. Office of US Attorney, USCA
Civ. Action No. 10-4193 (3d Cir.), Docket Entry dated Apr. 5,
2011; (b) a “Notice of Petition for Review,” see id., Docket
Entry dated Apr. 25, 2011; (c) a two-hundred-ninety-two-page
“Amended Notice of Petition for Review,” see id., Docket Entry
dated May 9, 2011 (consisting of five parts and replicating many
pages already made part of Plaintiff’s above-described appellate
7
same Notice in this matter, expressly addressing it to this Court
and, hence, requesting this Court’s ruling on his submission.7
Compare Instant Matter, Docket Entry No. 72, to Telfair et al. v.
Office of US Attorney, USCA Civ. Action No. 10-4193 (3d Cir.),
Docket Entry docketed on April 5, 2011.
Plaintiff’s Notice detailed his reading of law, see
generally, id., and asserted that he was unduly prejudiced by
Judge Cavanaugh’s order directing the Clerk not to accept any
Plaintiff’s pro se submissions in Plaintiff’s criminal
proceedings.
See id. at 3-5.
In addition, seemingly in
connection with the order of preclusion entered in the currentlyon-appeal action addressing Plaintiff’s submissions styled to
mimic a disciplinary grievance, Plaintiff asserted that his
submissions, raising claims on behalf of Gatling, and challenging
Plaintiff and Gatling’s criminal proceedings before Judge
Cavanaugh); (d) a “Letter Brief,” see id., Docket Entry dated May
27, 2011; (e) one more “Amended Notice of Petition for Review,”
see id., Docket Entry dated May 27, 2011, a seventy-three-page
submission; and (f) a seventeen-page “Amended Urgent Grievance,”
see id., Docket Entry dated June 3, 2011. The entirety of
Plaintiff’s submissions made with the Court of Appeals during
less than two months is four hundred sixty one pages.
7
The sole distinction between these two submissions is
that, in the document filed in the instant matter, the line above
caption reads “In the United States District Court for the
District of New Jersey” (implying Plaintiff’s request for this
Court’s ruling on his submission), while – in the document filed
in Telfair et al. v. Office of US Attorney, USCA Civ. Action No.
10-4193 (3d Cir.) – the line above caption reads “In the United
States Court of Appeals for the Third Circuit,” seemingly
implying Plaintiff’s simultaneous request for the Court of
Appeals’ ruling on the same submission.
8
inability to make as many and as lengthy filings as he desires,
in every action Plaintiff is a party to, endangers Plaintiff’s
ability to meet temporal procedural requirements.8
10-11.
See id. at
He also asserted that the filing limitation might prevent
him from “managing and maintaining the momentum” of his
litigations.9
C.
See id. at 12.
Procedural History of the Instant Matter
The instant matter was commenced upon Plaintiff’s submission
of a Bivens complaint; the Clerk received it on February 7, 2008.
See Instant Matter, Docket Entry No. 1.
Upon screening
Plaintiff’s complaint, this Court concluded as follows:
[Plaintiff], a federal prisoner currently confined at
the Hudson County Correctional Center in South Kearny,
New Jersey, . . . brings a civil rights complaint
against the following defendants: Karen P. Tandy,
Administrator of the . . . DEA; Gerard P. McAleer,
Director [of the] DEA in Newark; 1-50 unknown DEA
8
Plaintiff asserted that the Clerk’s Office might be
unavailable on weekends and holidays, or during certain hours, or
as a result of incremental weather or failure of the electronic
filing system. However, since Plaintiff is a prisoner, his
submissions are subject to the prisoner’s mailbox rule. Thus,
the Clerk’s hours, weather and potential electronic failure have
no relevance to Plaintiff, since his applications, if received by
this District, are deemed submitted on the date when he hands
them to his prison officials for mailing to the Court.
9
These statements are accompanied by copies of Plaintiff’s
letters to Azzarello (i.e., Plaintiff’s current defense counsel
in his criminal proceedings before Judge Cavanaugh); these
letters state Plaintiff’s views as to which post-conviction and
appellate applications Azzarello shall make on behalf of
Plaintiff. Copies of Plaintiff’s letters are accompanied by a
letter from Azzarello to Plaintiff stating that Azzarello sees no
factual bases for filing many applications desired by Plaintiff.
9
agents; 1-50 unknown federal agents; Ray McCarthy,
Chief of Police [in] Newark; Murad Muhammed [an officer
with the] Newark Police . . . ; 1-50 unknown police
officers; Paul W. Ber[g]rin, Esq.; and Christopher
Christie, United States Attorney for the District of
New Jersey. . . . [Plaintiff] alleges that on January
23, 2007, he was taken into custody by DEA agents, who
used terroristic threats to force [him] to admit to
drug trafficking crimes or cooperate with the agents in
their investigation. . . . [Plaintiff] further
alleges that he had repeatedly requested an attorney
during his custodial interrogation, but his request was
denied. . . . [Plaintiff] alleges that he was
pressured to take the Government's plea offer, and not
to make any motions with respect to the criminal
charges against him. . . . [Plaintiff] claims that
the defendants violated his constitutional rights under
the Fourth, Fifth, Sixth, and Fourteenth Amendments.
Namely, he asserts claims of false arrest, unlawful
search and seizure, falsifying documents and evidence,
intimidation, criminal threats, coercion, denial of his
Miranda rights, denial of medical treatment, theft or
conversion of personal property, denial of due process
and equal protection, selective and malicious
prosecution, and denial of his right to a speedy trial.
Id. Docket Entry No. 14, at 1-5.
When the Court was screening Plaintiff’s pleadings, the
United States Supreme Court was yet to issue its pivotal
standard-of-review case, Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009).
Thus, this Court relied on Erickson v. Pardus, 551 U.S.
89 (2007), in order to screen Plaintiff’s pleadings10 under the
10
Shortly after submitting his original complaint,
Plaintiff filed – together with his in forma pauperis application
- his amended complaint. See Instant Matter, Docket Entry No. 4.
The Court screened these two sets of pleadings jointly.
10
prior standard-of-review test set forth in Conley v. Gibson, 355
U.S. 41 (1957).11
See id. Docket Entry No. 14, at 8.
With regard to Plaintiff’s false arrest claims, the Court
concluded that - in light of Plaintiff’s assertion “that the DEA
agents and other police officers had no reasonable suspicion or
probable cause to arrest him” - these claims had to be proceeded
past the sua sponte dismissal stage.
See id. at 14.
Then,
discussing the interplay between Wallace v. Kato, 549 U.S. 384
(2007), and its predecessor case, Heck v. Humphrey, 512 U.S. 477
(1994), this Court found that a stay was warranted as to these
claims.12
See id. at 19.
The Court dismissed Plaintiff’s claims against Bergrin for
failure to meet the color-of-law requirement, see id. at 21, and
also dismissed Plaintiff’s claims against his prosecutors on the
grounds of prosecutorial immunity.
See id. at 23.
While these
lines of claims were dismissed with prejudice, Plaintiff’s claims
alleging malicious prosecution were dismissed as unripe in light
11
In Iqbal, the Supreme Court conclusively archived the
Conley v. Gibson standard of review and clarified that the
standard of review set forth in Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007), should apply to civil rights claims of all
litigants, including confined individuals proceeding pro se.
12
Since Plaintiff alleged that the DEA agents and Newark
police officers conducted an unlawful search incidental to his
arrest, this Court reached the same conclusion with regard to
Plaintiff’s unlawful search claims and stayed those claims too.
11
of Plaintiff’s facial inability to assert facts in support of
some elements of this tort.
See id. at 24.
Addressing Plaintiff’s allegation that “his Miranda rights
were violated,” this Court dismissed these claims on the grounds
that police questioning without a Miranda warning cannot give
rise to a cognizable Bivens claim.
Id. at 25-26.
Then, turning
to Plaintiff’s due process, speedy trial and equal protection
allegations, as well as to Plaintiff’s property claims, this
Court dismissed those challenges for failure to state a claim
upon which relief can be granted or as barred by FTCA procedural
requirements.
See id. at 28-29.
Consequently, the Court directed service solely with regard
to: (a) Plaintiff’s allegations that Plaintiff was denied medical
care for his allegedly broken hand; and (b) Plaintiff’s claims
against Defendants other than those who were implicated only in
Plaintiff’s allegations expressly dismissed by the Court.13
See
id. at 27-28.
After process was served on all Defendants other than
Bergrin and the United States Attorney (i.e., on Defendants Karen
Tandy (“Tandy”), Gerard McAleer (“McAleer”), and Messrs. McCarthy
and Muhammad), Tandy and McAleer moved for summary judgment
13
The Clerk correctly terminated the then-acting United
States Attorney for the District of New Jersey and Bergrin as
Defendants in this matter. The Clerk, however, failed to duly
terminate all other Defendants affected by this Court’s dismissal
of Plaintiff’s other claims.
12
asserting that Plaintiff sued Tandy and McAleer solely on the
grounds of their supervisory positions.
No. 30.
See id., Docket Entry
This Court granted Tandy and McAller’s motion, hence
dismissing all Plaintiff’s claims against them.
See id., Docket
Entry No. 41.
Meanwhile, Plaintiff kept filing a slew of submissions.
Specifically, he filed:
a.
a ten-page “Petition in Support of Civil Motion,” see id.
Docket Entry No. 12;
b.
a nineteen-page “Memorandum of Law in Support of Bail Motion
and Due Process Violations” raising issues not raised in his
original or amended pleadings, see id. Docket Entry No. 13;
c.
an appeal challenging this Court’s dismissal of facially
meritless claims, see id. Docket Entry No. 20;
d.
a letter asserting that this Court is “sabotaging”
Plaintiff’s challenges, see id. Docket Entry No. 25;
e.
a letter informing this Court about Plaintiff’s legal
malpractice suit against Bergrin,” see id. Docket Entry No.
31;
f.
a “Declaration in Support of Plaintiff-petitioner(s)
Civil-Action,” which asserted that this Court was not
providing Plaintiff with “constitutionally fair
administration of justice,” see id. Docket Entry No. 32;
13
g.
a “Declaration in Support of Petitioner(s),” largely
maintaining the same, see id. Docket Entry No. 33;
h.
another “Declaration” asserting, once again, the same, see
id. Docket Entry No. 34;
i.
a letter addressed to the Court of Appeals requesting a
speedier decision with regard to Plaintiff’s appeal of this
Court’s sua sponte screening determinations, see id. Docket
Entry No. 37;
j.
a Rule 60 motion, see id. Docket Entry No. 38;
k.
a copy of Petitioner’s threatening letter addressed to
Pedicini, who was then representing Petitioner in the
criminal proceedings before Judge Cavanaugh, see id. Docket
Entry No. 39;
l.
a letter informing this Court that Plaintiff was applying
for certiorari from the United States Supreme Court,14 see
id. Docket Entry No. 43;
14
Thus far, the Supreme Court denied Plaintiff’s
application for a writ of mandamus, see In re Telfair, 130 S. Ct.
511 (2009), his request for a writ of prohibition, see In re
Telfair, 130 S. Ct. 511 (2009), his application for certiorari,
see In re Telfair, 130 S. Ct. 631 (2009), his application for
rehearing, see In re Telfair, 130 S. Ct. 1044 (2009), his request
for reconsideration of denial of rehearing, see In re Telfair,
130 S. Ct. 1045 (2009), and his request for reconsideration of
denial of reconsideration of denial of rehearing, see In re
Telfair, 130 S. Ct. 1045 (2009).
14
m.
a letter detailing to this Court the developments in
Plaintiff’s application for certiorari, see id. Docket Entry
No. 44;
n.
a thirty-page submission consisting of various documents
related to Plaintiff’s criminal prosecution, see id. Docket
Entry No. 45;
o.
a thirty-six-page “Conditional Application or Alternative
Petition,” notifying this Court of Plaintiff’s beliefs that
“the government and state officials have conspired to the
malicious manifest deprivation of rights and the
perpetration of a fraud tantamount to impeachable-offenses,”
see id. Docket Entry No. 46;
p.
an “Affidavit of Merit in Lieu of Certification in Support
of Legal-Matter(s)” reproducing the questions that were
allegedly asked during Plaintiff’s polygraph test
administered in connection with Plaintiff’s criminal
prosecution before Judge Cavanaugh, see id. Docket Entry No.
47;
q.
a twenty-nine-page “Joinder Tort Complaint & Motion to
Consolidate” expressing Plaintiff’s beliefs that
“prosecutions . . . have been initiated with unethical
conduct and character, and with purpose of covering for
state & government fraud and/or corruption, tantamount to
15
wrongful arrest and the perpetration of a fraud & bad faith
prosecution,” see id. Docket Entry No. 48;
r.
one more, thirty-one-page-long, “Joinder Tort Complaint,”
alleging the same, see id. Docket Entry No. 49;
s.
a thirty-one-page letter repeating the same, see id. Docket
Entry No. 50;
t.
a thirty-three-page letter reciting on the same, see id.
Docket Entry No. 51;
u.
a thirty-six-page submission stating the same once again,
see id. Docket Entry No. 52;
v.
a sixty-one-page “Conditional Application or Alternative
Petition for Review (Amended) in Conjunction with . . .
Affidavit of Merit(s) in Support of Civil/Tort Action,”
stating the same one more time, see id. Docket Entry No. 53;
w.
one more copy of the same “Conditional Application,” see id.
Docket Entry No. 54;
x.
an application for emergent relief seeking immediate trial
in this matter, even though no responsive pleadings were
served by McCarthy and Muhammad, see id. Docket Entry No.
55;
y.
one more copy of the same emergent application, see id.
Docket Entry No. 56;
z.
a “Conditional Application for Order to Show Cause” seeking
this Court’s order directing the United States Attorney
16
General, the United States Solicitor General, the Chief
Judge in this District and all terminated and not terminated
defendants to “show cause as to why the hereof pleadings
should not issue against them in accordance with prayer of
said pleadings,” see id. Docket Entry No. 58;
aa.
a paraphrased version of the same, see id. Docket Entry No.
59;
bb.
a twenty-two-page motion for reconsideration asserting that
Plaintiff should have standing to pursue claims on behalf of
Gatling, see id. Docket Entry No. 61;
cc.
a twenty-five-page “Petition for Issuance for Order to Show
Cause,” asserting effectively the same, see id. Docket Entry
No. 62;
dd.
a forty-six-page “De Novo Petition for Review,” alleging the
same, see id. Docket Entry No. 63;
ee.
a fifteen-page “Application for Leave to File De Novo
Petition for Review,” see id. Docket Entry No. 64;
ff.
a twenty-five-page document mimicking a disciplinary
grievance identical to the one that gave rise to Telfair et
al. v. Office of the U.S. Attorney, Civ. Action No. 10-2958
(GEB) (D.N.J.), see id. Docket Entry No. 65;
gg.
a forty-one-page “Joinder Tort Complaint” stating claims on
behalf of Plaintiff and Gatling with regard to Plaintiff’s
stayed arrest, Gatling’s arrest and prosecution, as well as
17
allegations analogous to those raised in the submissions
mimicking a disciplinary grievance, see id. Docket Entry No.
66;
hh.
a forty-three page letter repeating the same “Joinder Tort
Complaint,” see id. Docket Entry No. 67;
ii.
a seventy-five-page “Notice of Fifth Amended Complaint,”
stating allegations on behalf of Gatling and Plaintiff with
regard to the claims stayed in this matter and repeating
allegations analogous to those raised in the submissions
mimicking a disciplinary grievance, see id. Docket Entry No.
68.
Although the above-mentioned preclusion order was entered
against Plaintiff and directed him to seek leave from this Court
in order to make any unauthorized pro se filing in this matter,
Plaintiff ignored that preclusion, and continued with his filings
by submitting, in this matter:
jj.
an eighty-page compilation appraising this Court about
documents filed by Plaintiff in his legal malpractice suit
against Pedicini and in Plaintiff’s appeal to the Court of
Appeals with regard to dismissal of his claims presented by
means of submissions styled to mimic a disciplinary
grievance, see id. Docket Entry No. 71; and
18
kk.
a copy of the Notice that was also filed with the Court of
Appeals, and the content of which was detailed by this Court
supra.
See id. Docket Entry No. 72.
In other words, as of now, Plaintiff entered on the docket
in this matter one thousand seventeen (1017) pages by means of
forty-seven docket entries, see generally, Docket, repeating the
same filings over and over again, re-raising already dismissed
claims and ignoring this Court’s guidance that Plaintiff has no
standing to pursue claims on behalf of Gatling.
See id. Docket
Entry No. 60.
II.
STANDARD OF REVIEW
The standard of review under Rule 8 was clarified in the
Supreme Court’s Iqbal decision since this Court’s screening of
Plaintiff’s original and amended complaint.
In determining the sufficiency of a complaint, the Court
must be mindful to construe the facts stated in the complaint
liberally in favor of the plaintiff.
See Erickson v. Pardus, 551
U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Indeed, it is
long established that a court should “accept as true all of the
[factual] allegations in the
complaint and reasonable inferences
that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.”
Morse v. Lower Merion School Dist.,
132 F.3d 902, 906 (3d Cir. 1997).
19
However, while a court will
accept well-pled allegations as true, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or
sweeping legal conclusions cast in the form of factual
allegations.
See id.
Addressing the clarifications as to the litigant's pleading
requirement stated in the United States Supreme Court in Bell
Atl. Corp. v. Twombly, 550 U.S. 544, the Court of Appeals for the
Third Circuit provided the courts in this Circuit with detailed
and careful guidance as to what kind of allegations qualify as
pleadings sufficient to pass muster under the Rule 8 standard.
See Phillips v. County of Allegheny, 515 F.3d 224, 230-34 (3d
Cir. 2008).
Specifically, the Court of Appeals observed as
follows:
“While a complaint . . . does not need detailed
factual allegations, a plaintiff's obligation [is] to
provide the 'grounds' of his 'entitle[ment] to relief'
[by stating] more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action . . . .” Twombly, 127 S. Ct. at 1964-65 . . .
Rule 8 “requires a 'showing,' rather than a blanket
assertion, of entitlement to relief.” Id. at 1965
n.3. . . . “[T]he threshold requirement of Rule
8(a)(2) [is] that the 'plain statement [must] possess
enough heft to 'sho[w] that the pleader is entitled to
relief.'” Id. at 1966. [Hence] “factual allegations
must be enough to raise a right to relief above the
speculative level.” Id. at 1965 & n.3. . . . [Indeed,
it is not] sufficient to allege mere elements of a
cause of action; instead “a complaint must allege
facts suggestive of the proscribed conduct.” Id.
Id. at 230-34 (original brackets removed).
20
This pleading standard was further refined by the United
States Supreme Court in its recent decision Ashcroft v. Iqbal,
129 S. Ct. 1937:
[In any civil action, t]he pleading standard . . .
demands more than an unadorned [“]the-defendantunlawfully-harmed-me[“] accusation. [Twombly, 550
U.S.] at 555 . . . . A pleading that offers “labels
and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” [Id.] at
555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. . . . A claim has facial
plausibility [only] when the plaintiff pleads factual
content . . . . Id. at 556. [Moreover,] the
plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully.
Id. [Indeed, even w]here a complaint pleads facts that
are “merely consistent with” a defendant's liability,
[the so-alleging complaint still] “stops short of
[showing] plausibility of 'entitlement to relief.'”
Id. at 557 (brackets omitted). [A fortiori,] the tenet
that a court must accept as true all of the
allegations contained in a complaint is inapplicable
to legal conclusions [or to t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements [,i.e., by] legal conclusion[s]
couched as a factual allegation [e.g.,] the
plaintiffs' assertion of an unlawful agreement [or]
that [defendants] adopted a policy “'because of,' not
merely 'in spite of,' its adverse effects upon an
identifiable group.” . . . . [W]e do not reject these
bald allegations on the ground that they are
unrealistic or nonsensical. . . . It is the
conclusory nature of [these] allegations, rather than
their extravagantly fanciful nature, that disentitles
them to the presumption of truth. . . . [Finally,] the
question [of sufficiency of] pleadings does not turn .
. . the discovery process. Twombly, 550 U.S.] at 559
. . . . [The plaintiff] is not entitled to discovery
[where the complaint alleges any of the elements]
“generally,” [i.e., as] a conclusory allegation
[since] Rule 8 does not [allow] pleading the bare
elements of [the] cause of action [and] affix[ing] the
label “general allegation” [in hope to develop facts
through discovery].
21
Iqbal, 129 S. Ct. at 1949-54.
II.
DISCUSSION
A.
Stayed Claims
1.
Pertinent Legal Regime
In a series of cases beginning with Preiser v. Rodriguez,
411 U.S. 475 (1973), the Supreme Court has analyzed the
intersection of 42 U.S.C. § 1983 and the federal habeas corpus
statute.15
In the following case, Heck v. Humphrey, 512 U.S.
477, the Supreme Court addressed a corollary question to that
presented in Preiser, i.e., whether a prisoner could implicitly
challenge the constitutionality of his conviction in a civil
rights suit seeking only damages (a form of relief not available
through a habeas corpus proceeding).
Again, the Court rejected §
1983 as a vehicle to implicitly challenge the lawfulness of a
criminal judgment.
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
15
In Preiser, state prisoners who had been deprived of
good-conduct-time credits by the New York State Department of
Correctional Services as a result of disciplinary proceedings
brought a § 1983 action seeking injunctive relief to compel
restoration of the credits, which would have resulted in their
immediate release. See Preiser, 411 U.S. 475 at 476. The
prisoners did not seek compensatory damages for the loss of their
credits. See id. at 494. The Court, however, held that “when a
state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release
from that imprisonment, his sole federal remedy is a writ of
habeas corpus.” Id. at 500.
22
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
Id. at 486-87 (footnote omitted).
In light of a prisoner's inability to initiate a valid §
1983 action for wrongful conviction until and unless such
conviction is overturned, Heck coined the concept of prematurity,
pursuant to which “a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does
not accrue until the conviction or sentence has been
invalidated.”16
Id. at 489-90.
In other words, in the event a prisoner challenges his
conviction under § 1983, but does it prior to invalidation of
that conviction, Heck directs dismissal of such challenges
without prejudice, as premature.
Such prematurity does not imply
substantive invalidity of the prisoner's claims in the future:
this is so simply because a federal court cannot foresee whether
16
Heck's deferred accrual with regard to challenges to a
prisoner's conviction is, in a way, analogous to the accrual of a
prisoner’s claims based on his/her prosecution, where one of the
elements of the tort of malicious prosecution automatically
defers the claim’s accrual until the conviction is invalidated.
23
the prisoner's conviction would be overturned by state or federal
courts in the future.17
The concept of prematurity is, however, narrow.
It is for
that reason the Supreme Court instructed district courts, in
determining whether a complaint states a claim under § 1983, to:
(a) evaluate whether a favorable outcome in the § 1983 action
would necessarily imply the invalidity of the prisoner's criminal
judgment; and (b) defer accrual only if such finding is made.
In Wallace v. Kato, 549 U.S. 384, the Supreme Court
expressly addressed the question when a § 1983 claim for false
arrest in violation of the Fourth Amendment accrues.
The Court
held that such claim (and the accompanying claim for false
imprisonment) accrues immediately upon the arrest at issue, and
the period of limitations begins to run as soon as the false
imprisonment ends, i.e., when the arrestee becomes held pursuant
to legal process.18
“Thereafter, unlawful detention forms part
17
Here, the holding of Heck is not per se applicable,
since Plaintiff – at the time of his initiation of the instant
Bivens action – was not convicted and, hence, the deferred
accrual articulated in Heck could not have taken place. See
Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010).
However, a related concept of deferred adjudication of alreadyaccrued claims, articulated in Wallace v. Kato, derives from the
prudential considerations underlying the doctrine of prematurity
articulated in Heck v. Humphrey.
18
Hence, the injury of false arrest/false imprisonment is
be based solely on the events/restraint that takes place from the
moment of arrest and until the moment of arrestee being held
pursuant to legal process, e.g., arrainment.
24
of the damages for the ‘entirely distinct’ tort of malicious
prosecution, which remedies detention accompanied, not by absence
of legal process, but by wrongful institution of legal process.”
Wallace, 549 U.S. at 389-90 (citations and footnote omitted).
However, where resolution of a criminal defendant’s civil rights
challenges might have dispositive effect of the defendant’s
criminal proceedings, the Wallace v. Kato Court allowed stay.
2.
Stayed Claims Will Remain Stayed
Here, Plaintiff’s original and amended complaint asserted
that Plaintiff was arrested without probable cause, that the
challenged search was conducted incidental to his arrest, and
evidence obtained during that search played the key role during
Plaintiff’s criminal prosecution.19
19
For the purposes of this
Submissions made in Plaintiff’s criminal proceedings
indicated that Plaintiff’s arrest was conducted upon arrest
warrant (which, by definition, supplied probable cause for such
arrest), and evidence at issue were obtained as a result of the
search of premises where Plaintiff’s “employees” were packing
controlled substances for him, where police was dispatched to
investigate gunfire report, where police requested entry to the
premises upon discovering bullet holes and empty shell casings,
and where police entered upon obtaining consent of Plaintiff’s
employees. In other words, according to the submissions made in
Plaintiff’s criminal proceedings before Judge Cavanaugh, it
appears that the search of the premises was performed with ample
probable cause and the produced evidence were legally obtained.
See, e.g., Virginia v. Moore, 553 U.S. 164 (2008) (explaining
that a rather low bar is set for the purposes of the Forth
Amendment probable cause requirement). The letters from
Plaintiff’s prior and current counsel indicate these counsel’s
opinion that exclusionary motions would be factually unwarranted
under the circumstances of Plaintiff’s case. The Court, however,
stresses that it takes no position on this issue.
25
Court’s sua sponte review, this Court accepted Plaintiff’s
allegations as true and found that abundance of caution warrants
stay of Plaintiff’s false arrest and illegal search claims.
The same abundance of caution drives this Court’s analysis
now.
Plaintiff’s letters addressed to Azzarello, his current
defense counsel, indicate that Plaintiff wishes to raise
suppression challenges on direct appeal, asserting that evidence
central to his conviction were fruit of a poisoned tree.
This
Court, therefore, finds it warranted to extend stay of
Plaintiff’s false arrest/illegal search claims until ninety days
from: (a) the date when Plaintiff’s direct appeal is conclusively
denied, with no further appeal possible; or (b) the date when
Plaintiff becomes procedurally barred from raising his appellate
challenges.
Correspondingly, until and unless such development takes
place, Plaintiff shall not assert in this action any claims
related to his allegedly false arrest and/or illegal search.
B.
Claims Raised on Behalf of Gatling
This Court already explained to Plaintiff that, under the
Article III claim-or-controversy requirement, Plaintiff has no
standing to sue for the wrongs allegedly suffered by Gatling.
See Instant Matter, Docket Entry No. 60.
The same was explained
to Plaintiff in Telfair et al. v. Office of the U.S. Attorney,
Civ. Action No. 10-2958 (GEB) (D.N.J.), Docket Entry No. 4, and
26
then re-explained, in great detail upon Plaintiff’s filing a
motion for reconsideration in that action.
745 F. Supp. 2d at 560-62.
unnecessary.
See In re Telfair,
Another repeat of the same appears
Therefore, for the remainder of this action,
Plaintiff shall not assert any claims on behalf of Gatling.
C.
Dismissed Claims and Already-Terminated Defendants
The overwhelming volumes of Plaintiff’s submissions filed in
this action do not allow this Court to determine, with any degree
of certainty, whether Plaintiff’s still-ongoing references to
those Defendants who were terminated (upon this Court’s sua
sponte dismissal of Plaintiff’s initial and amended complaints or
upon this Court’s grant of summary judgment to Tandy and McAleer)
indicate Plaintiff’s desire to seek this Court’s reconsideration
of the aforesaid determinations.
Out of abundance of caution,
the Court presumes that at least some of Plaintiff’s numerous
submissions containing such references (or re-raising the claims
already dismissed by this Court) were filed with such a goal.
A motion for reconsideration is a device of limited utility.
There are only four grounds upon which a motion for
reconsideration might be granted: (1) to correct manifest errors
of law or fact upon which the judgment was based; (2) to present
newly-discovered or previously unavailable evidence; (3) to
prevent manifest injustice; and (4) to accord the decision to an
intervening change in prevailing law.
27
See 11 Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2810.1 (2d ed. 1995); see also Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986)
(purpose of motion for reconsideration is to correct manifest
errors of law or fact or to present newly discovered evidence).
“To support reargument, a moving party must show that dispositive
factual matters or controlling decisions of law were overlooked
by the court in reaching its prior decision.”
Assisted Living
Associates of Moorestown, L.L.C., v. Moorestown Twp., 996 F.
Supp. 409, 442 (D.N.J. 1998).
In contrast, mere disagreement
with the district court's decision is an inappropriate ground for
a motion for reconsideration: such disagreement should be raised
through the appellate process.
See id. (citing Bermingham v.
Sony Corp. of America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J.
1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F.
Supp. 274, 275 (D.N.J. 1990)); see also Drysdale v. Woerth, 153
F. Supp. 2d 678, 682 (E.D. Pa. 2001) (a motion for
reconsideration may not be used as a means to reargue
unsuccessful theories).
Here, the Court carefully examined over thousand pages
deposited by Plaintiff on the docket in this matter, but could
not find a viable ground for reconsideration of this Court’s
prior determinations.
Correspondingly, for the remainder of this
action, Plaintiff shall not re-assert any claims that were
28
dismissed with prejudice (e.g., challenges against Plaintiff’s
defense counsel or prosecutors, claims based on Miranda warning,
due process and equal protection claims, claims barred by the
FTCA, etc.) or those Plaintiff’s claims that were dismissed as
unripe (i.e., Plaintiff’s malicious prosecution challenges), or
all Plaintiff’s claims against terminated Defendants (e.g.,
Christy, Bergrin, Tandy, McAleer, etc.).
D.
Claims Previously Proceeded Under Conley v. Gibson
The foregoing analysis leaves the Court with only two lines
of Plaintiff’s claims that were proceeded past the sua sponte
dismissal stage under the now-archived test set forth in Conley
v. Gibson and remained not-disposed-of upon the Court’s grant of
summary judgment to Tandy and McAleer.
Specifically, these are: (a) Plaintiff’s unelaborated-upon
claim alleging denial of medical care for Plaintiff’s broken
hand; and (b) Plaintiff’s references to Messrs. McCarthy and
Muhammad, and to numerous John Does.20
However, even a cursory
review of these two lines of claims indicates incongruity between
the denial-of-medical-care allegations and the named Defendants,
since – in his original and amended complaints – Plaintiff
clarified that Ray McCarthy was named solely because he was the
20
The Court is not entirely clear as to the particular
John Does Plaintiff envisioned, since Plaintiff’s original and
amended complaints suggested that these John Does might be state/
municipal police officers, while Plaintiff’s multiple later
submissions suggested that these John Does might be DEA agents.
29
Chief of Newark Police Department and that Murad Muhammad was
named because he was an officer of Newark Police Department.
Under the now-governing standard articulated in Iqbal,
Plaintiff’s claims against McCarthy should be dismissed.
Absent consent by a state, the Eleventh Amendment bars federal
court suits for money damages against state officers in their
official capacities, see Kentucky v. Graham, 473 U.S. 159, 169
(1985), and – in addition – supervising officials cannot be held
liable for actions of their subordinates unless the litigant
asserts facts showing these supervisors’ personal involvement in
the alleged wrongs.
See Iqbal, 129 S. Ct. 1937; Monell v.
Department of Social Services, 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362 (1976); Durmer v. O'Carroll, 991 F.2d 64, 69
n.14 (3d Cir. 1993).
With the same token, claims against the
supervisors are subject to dismissal if they are based solely on
the respondeat superior theory.
See Iqbal, 129 S.Ct. at 1948
(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior”); Argueta v. United States Immigration &
Customs Enforcement, 2011 U.S. App. LEXIS 11983 (3d Cir. June 14,
2011).
Since this Court’s repeated examination of Plaintiff’s
original and amended complaints (and of over thousand pages of
the submissions made by Plaintiff in this matter after this
30
Court’s screening of these two initial rounds of Plaintiff’s
pleadings) does not indicate that Plaintiff named McCarthy as
Defendant in this action on the grounds other than McCarthy’s
supervisory capacity, Plaintiff’s claims against McCarthy will be
dismissed with prejudice.
Moreover, Plaintiff’s references to Muhammad (and Does)
indicates that Plaintiff named them as Defendants in this action
because these individuals allegedly partook in Plaintiff and/or
Gatling’s arrests.
No statement made in Plaintiff’s original
complaint, amended complaint and the multitude of later
submissions links these individuals to the alleged denial of
medical care.
Therefore, Plaintiff’s claims based on such denial
of medical care do not appear to have a defendant named in
connection with these claims (and do not provide this Court with
any facts except for Plaintiff’s self-serving conclusion that
medical care was denied to him), while Plaintiff’s naming of
Muhammad and Does as Defendants is left unaccompanied by any
claim other than that already stayed.
These shortcomings warrant dismissal.
However, since the
Court cannot rule out the possibility that Plaintiff might be
able to cure the deficiencies of his denial-of-medical-care claim
by naming the alleged wrongdoers and detailing the facts of that
claim, just as Plaintiff might be able to cure the shortcomings
of his claims against Muhammad and Does by asserting wrongful
31
acts personally committed by these individuals (that is, acts
other than those underlying the claims already dismissed or
stayed by this Court), the Court will allow Plaintiff to amend
his denial-of-medical-care claims and claims against Muhammad and
Does.
E.
Effect of the Preclusion Order
1.
Plaintiff’s Actions Halt Resolution of His Claims
As of now, Plaintiff docketed - if this Court were to count
only his submissions made in this matter - over thousand pages of
various submissions; these submissions repeat each other many
times over and continuously re-raise claims already dismissed by
this Court with or without prejudice.
Moreover, these
submissions include hundreds of pages wholly irrelevant to the
issues at bar: they apprise this Court of Plaintiff’s numerous
disciplinary grievances to the OAE (and their progress),
Plaintiff’s multiple state court legal malpractice suits
(and
their progress), Plaintiff’s many applications to the Court of
Appeals and to the Supreme Court (and their progress), Gatling’s
criminal proceedings (and their progress), Gatling’s education
and employment endeavors (and their progress), etc.
Furthermore, Plaintiff’s prolific litigious tendencies
appear systemic, rather than limited to the instant matter, since
Plaintiff filed hundreds of analogously deficient, irrelevant and
repetitious documents in his criminal proceedings presided by
32
Judge Cavanaugh and in his civil action commenced upon his
submission of documents mimicking a disciplinary grievance.21
The Court notes, with great concern, that Judge Cavanaugh’s
directive not to accept any Plaintiff’s pro se submissions in his
criminal proceedings and Chief Judge Brown’s limited order of
preclusion directing Plaintiff to seek leave from this Court for
the purposes of filing any unauthorized pro se submission in this
action have had no effect whatsoever: Plaintiff continued
systemic filing of unauthorized pro se submissions in this matter
and in his criminal proceedings after being informed of the
aforesaid filing limitations.
This pattern of litigation strongly suggests Plaintiff’s
inability to focus on the issues at heart of each particular
action and/or to give due weight to judicial decisions.
Accord
In re Telfair, 745 F. Supp. 2d at 559, n. 21 (“Telfair's
disregard for the value of a judicial decision is particularly
appalling in light of the fact that — with regard to [the case at
bar] — a dismissal was entered by the Court of Appeals and then
the Supreme Court of the United States had to deny Telfair's six
virtually identical applications”).
Therefore, a meticulous
enforcement of the “limited order of preclusion [might] help
[Plaintiff] to: (a) avoid repetitious filings, (b) carefully and
21
Plaintiff’s currently pending appellate proceedings
before the Court of Appeals appear to reflect the same tendency.
33
thoughtfully select his claim; and (c) reduce these claims to
clear and concise statements free from needless commentary that
reduces the value of his submissions.”
2.
Id. at 584.
Notice Construed as Objections to Preclusion
In connection with the foregoing, the Court finds it
warranted to address Plaintiff’s Notice, which Plaintiff – in
sync with his tendency to file repetitions submissions in the
same action and also to file the same submission in different
actions – docketed in both the instant matter and Plaintiff’s
appellate proceedings challenging dismissal of his compilation
styled to mimic a disciplinary grievance.
See Instant Matter,
Docket Entry No. 72.
Since certain statement made in Plaintiff’s Notice could be
read as his objections to the limited order of preclusion entered
against him, this Court construes Plaintiff’s Docket Entry No. 72
accordingly and examines it for the purposes of this action and
Plaintiff’s future civil actions that might be initiated by
Plaintiff in this District pro se and in forma pauperis.22
22
Pursuant to a recently adopted Local Rule, which
provides that, “[a] subsequent case or application filed by a pro
se plaintiff shall, where feasible and within the appropriate
vicinage, be assigned to the Judge to whom the first prior case
or application of the plaintiff was assigned,” L. Civ. R.
40.1(c), Plaintiff’s future pro se civil actions in this District
(excluding Plaintiff’s § 2255 action), if such matters are
commenced, are likely to be assigned to this Court. However, out
of abundance of caution, this Court will direct complimentary
filing of this Opinion and accompanying Order in Telfair et al.
v. Office of the U.S. Attorney, Civ. Action No. 10-2958 (GEB)
34
As noted supra, Plaintiff’s Notice mainly asserts challenges
to Judge Cavanaugh’s order directing the Clerk not to accept any
Plaintiff’s pro se submissions in his criminal proceedings, where
Plaintiff is represented by counsel.23
However, a few statements
incorporated in the Notice could be read as reflecting on the
order of preclusion.
Specifically, one statement seems to assert
that Plaintiff’s inability to make as many and/or as lengthy
filings as he desires endangers Plaintiff’s ability to meet
temporal procedural requirements, because Plaintiff is concerned
that the Clerk’s Office might be unavailable on weekends and
holidays, or during certain hours, or as a result of incremental
weather or failure of the District’s electronic filing system.
However, as noted supra,Plaintiff’s submissions are subject to
the prisoner’s mailbox rule and, therefore, they cannot be
affected by the Clerk’s hours or holiday schedule, weather
conditions, potential failures of the District’s electronic
(D.N.J.), in the event the Clerk assigns any future matter,
commenced upon receipt of Plaintiff’s pro se civil complaint, to
another Judge, and such new matter raises preclusion concerns.
23
No statement made in this Opinion and accompanying Order
shall be construed as expressing this Court’s position as to what
actions shall or shall not be undertaken by Judge Cavanaugh in
connection with Judge Cavanaugh’s directive or with the aspect of
the preclusion order entered against Plaintiff that might be
construed as relevant to Plaintiff’s criminal proceedings. These
matter are subject to exclusive discretion of Judge Cavanaugh.
35
filing system, etc.24
Moreover, such matters as weather,
electronic failures, or Clerk’s holiday hours have no relevance
to Plaintiff’s preference for filing as many submissions in his
actions as he desires or to Plaintiff’s preference for making
these submissions as voluminous as Plaintiff’s whim might
dictate.
Therefore, Plaintiff’s above-detailed statement, even
if construed as objection to enforcement of the limited order of
preclusion in this action or in Plaintiff’s future non-emergent
pro se, in forma pauperis civil rights action in this District,
fails to provide a reason for lifting, relaxing or otherwise
altering of the preclusion order.
Plaintiff’s other statement asserts that the filing
limitations might prevent him from “managing and maintaining the
momentum” of his litigations.
However, this generic observation
equally fails to state a valid reason for non-enforcement of the
preclusion order; moreover, it appears that Plaintiff’s tendency
to swamp the dockets with floods of overly voluminous, obscure
and irrelevant documents is more likely to cause Plaintiff loss
of “momentum”: as it happened in the instant matter.
Conversely,
enforcement of the limited order of preclusion compelling
Plaintiff to execute clear, concise and on-point documents is
24
In the event Plaintiff, pursuant to the limited order of
preclusion, duly seeks and is granted leave to commence a new
civil matter, his pleadings in that new matter will be deemed
filed on the date when Plaintiff hands his request for such leave
to his prison officials.
36
likely to benefit Plaintiff’s cases by narrowing the issues and
propelling his actions to resolution on merits.
Therefore, to the degree Plaintiff’s Notice, filed by him in
this matter as Docket Entry No. 72 and in Telfair et al. v.
Office of US Attorney, USCA Civ. Action No. 10-4193 (3d Cir.),
was intended to state objections to the preclusion order, the
Notice does not warrant either lifting or alteration of the terms
of preclusion.
However, this Court is mindful of the Court of Appeals
recent observation that: (a) it is insufficient for a district
court to merely warn a litigant that the litigant’s persistent
abusive litigation practices might result in certain unspecified
“sanctions”; rather (b) the court shall inform the litigant of
the specific sanctions being contemplated and allow the litigant
an opportunity to object to these particular sanctions.
See
Hoffenberg v. Bumb, 2011 U.S. App. LEXIS 11741, at *14 (3d Cir.
June 9, 2011) (“The District Court here gave notice to [an
abusive pro se litigant] that his failure to [file documents
complying with procedural requirements] would result in
‘sanctions.’
But the District Court did not afford notice of the
particular order that it intended to enter placing restrictions
upon [the litigant’s] right to file [future submissions].
As a
result, [the litigant] did not have an opportunity to object [to
37
the particular sanctions imposed] before the [preclusion] order
was entered”) (emphasis added).
The Court, therefore, will allow Plaintiff an opportunity to
show cause as to why the order of preclusion entered against him
should not be enforced (or should be altered or relaxed) in this
matter and also in all Plaintiff’s future pro se, in forma
pauperis civil rights matters, if any, assigned to this Court
pursuant to Local Rule 40.1(c).
3.
Leave Granted at This Juncture
a.
Leave to File Amended Complaint
As detailed supra, Plaintiff’s claims can be subdivided into
five categories: (a) claims dismissed with prejudice (e.g.,
claims based solely on respondeat superior theory, claims barred
by prosecutorial immunity, claims not meeting the color-of-law
requirement, claims based on Miranda warning, claims alleging
denial of due process and speedy trial, claims barred by the
procedural requirements of the FCTC, claims raised without
standing to sue on behalf of Gatling, etc.); (b) claims dismissed
as unripe, without prejudice to raising these claims in another
civil rights action (i.e., claims asserting malicious
prosecution); (c) claims stayed in this action, subject to
litigation upon conclusion of Plaintiff’s criminal proceedings
and direct appeal (i.e., claims asserting illegality of
Plaintiff’s arrest and search); (d) claims asserting denial of
38
medical care by unspecified individuals under unspecified
circumstances, insufficient under the pleading standard detailed
of Iqbal; and (e) potentially existing but wholly unstated claims
against Muhammad and Does (that is, if this Court were to
hypothesize that these claim were meant to assert challenges
other than those falling within the above-listed categories “(a)”
to “(d)”).
Consequently, Plaintiff will be granted leave to file an
amended complaint; such leave will be granted solely with regard
to the “(d)” and “(e)” categories of his claims.
Since the Court
is already aware of the Bivens nature of Plaintiff’s suit and
analogous preliminary matters, Plaintiff’s amended complaint
shall be reduced to a document not exceeding fifteen pages,
single-sided, double-spaced, where:
a.
On the first page, Plaintiff shall list only the names of
those Defendants who are implicated by the allegations
stated in this amended complaint (or he shall identify these
Defendants by other means, such as title, appearance, etc.
in the event Plaintiff does not know the actual names of
some Defendants);25
b.
On each following page:
25
Cf. Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir.
2004) (“Plaintiffs may be unaware of the [exact] identities [of
the named defendants, being] unable to conduct a pre-trial
investigation to fill in the gaps. But by itself, this lack of
knowledge does not bar entry into a federal court”).
39
i.
Plaintiff shall state, on the top of the page, the name
of only one, particular Defendant (or identify that
Defendant by other means, such as title, appearance,
etc. in the event Plaintiff does not know the actual
name of that Defendant);
ii.
Under the name/identification of that Defendant,
Plaintiff shall state the approximate date, month and
year when the alleged events took place;26 and
iii. Plaintiff shall dedicate the remainder of that page to
his discussion of the specific facts of his claim
against that particular Defendant.
In other words,
Plaintiff shall state the “essential factual
background” of his claim analogous to “the first
paragraph of any newspaper story,” that is, the “who,
what, when, where, and how” of the events at issue.
Institutional Investors Grp. v. Avava, Inc., 564 F.3d
242, 253 (3d Cir. 2009).
No generalities or self-
serving conclusory statement, such as assertions that
the Defendant violated Plaintiff’s rights, or bare
recitals of the elements of a claim, or discussions of
26
Since Plaintiff’s original complaint was received by the
Clerk on February 7, 2008, all Plaintiff’s allegations based on
the events that took place on or after February 1, 2006, will be
presumed timely for the purposes of the Court’s sua sponte
screening of Plaintiff’s amended pleading, if such is received.
40
Plaintiff’s emotions and his perceptions of what the
law should be, will suffice.27
c.
Since Plaintiff’s statement of claims against each Defendant
shall not exceed one page, in the event Plaintiff elects to
submit a fifteen-page amended complaint, that amended
complaint shall state Plaintiff’s claims against fourteen
different Defendants (because the first page shall only list
all Defendants implicated in the amended complaint).
Plaintiff’s failure to adhere to these simple requirements
will be deemed abuse of leave granted herein.
b.
Orders to Show Cause
Plaintiff was informed of the following filing restrictions
with regard to this matter and Plaintiff’s future civil pro se,
in forma pauperis civil rights actions (other than his emergent
27
For instance, Plaintiff’s alleged denial of medical care
claim might read as follows: “Defendant: Officer so-and-so of
such-and-such correctional facility. Date: On or about such-andsuch date of such-and-such month, such-and-such year. Facts:
Plaintiff’s right (or left) hand was broken as a result of suchand-such events that took place on such-and-such date. The bone
fracture caused such-and-such swelling and such-and-such bruises
became visible around the fractured area. Plaintiff showed his
injured hand to the Defendant and requested permission to see a
doctor; Plaintiff also submitted a form slip requesting medical
attention. However, Defendant refused to accompany Plaintiff to
the medical department, refused to allow Plaintiff to proceed to
the medical department on his own and refused to file Plaintiff’s
medical slip. In addition, Defendant denied Plaintiff’s request
for ice and pain reducing medicine. Defendant justified his
decision to deny Plaintiff medical care by making such-and-such
statements.”
41
civil rights challenges) that might be initiated in this
District:
(1)
With regard to [Plaintiff’s instant action,
Plaintiff] shall seek leave . . . from [this
Court] to make any pro se submission [other than
that already authorized] before actually making
such submission. Each [such] applications for
leave to file a pro se submission shall:
a.
Be reduced to one-page, single-sided
document;
b.
Open with a statement whereas [Plaintiff]
shall aver . . . that the particular
submission [Plaintiff] seeks leave to file
would raise claims or allegations that:
(i)
were not [already] presented to
either [this Court] or to any other
judge . . . and, in addition,
(ii)
appear bona fide in light of the
guidance [already] provided to
[Plaintiff] by any judge in this
District or by any other court . .
. ; and
c.
Summarize the facts that [Plaintiff] intends
to assert in his pro se submission, if
allowed to file it. Such summary should be
reduced to clear and concise language not
exceeding two hundred words. No
generalities, supplications, lectures on law
or akin will be deemed a valid summary.
. . .
(3) With regard to any new matter that [Plaintiff]
wishes to initiate in this District while acting
pro se and proceeding in forma pauperis,
[Plaintiff] shall seek leave from the Clerk to
initiate such matter. Such applications . . .
shall:
a.
Be reduced to one-page, single-sided
document;
b.
Open with a statement whereas [Plaintiff]
shall aver . . . that the pleading
[Plaintiff] seeks leave to file would raise
claims or allegations that:
(i)
were not raised in this District or
in any other court at any time in
the past . . . ; and, in addition,
42
(ii)
c.
appear bona fide in light of the
guidance that was [already]
provided to [Plaintiff] by any
judge in this District or by any
other court . . . ; and
Summarize the nature and facts of the
allegations that [Plaintiff] intends to raise
in his pro se pleading, if allowed to file
it. Such summary should be reduced to clear
and concise language not exceeding two
hundred words. No generalities,
supplications, lectures on law or akin will
be deemed a valid summary.
In re Telfair, 745 F. Supp. 2d at 584-86.
Plaintiff, therefore, will be directed to submit, within
thirty days from the date of entry of the Order accompanying this
Opinion, a written statement detailing his objections, if any, to
the-above quoted restrictions.
Such written statement shall not
exceed ten pages, single-sided, double-spaced.
Plaintiff’s
objections shall be stated separately, clearly identifying which
objections relate to the instant matter and which relate to
Plaintiff’s future civil actions that might be commenced in this
District.28
28
Plaintiff shall not reiterate his objections based on
Clerk’s holiday schedule, Clerk’s hours, incremental weather or
Plaintiff’s speculations about potential failures of this
District’s electronic filing system: all these objections were
already found meritless by this Court. Analogously, Plaintiff
shall not include in his objections such generic statements as
Plaintiff’s beliefs that he might lose the “momentum” of his
actions: these speculative generalities were already ruled
meritless by this Court. Finally, Plaintiff shall not make any
references to Gatlin (or to Gatling’s ability to commence suit)
since the preclusion order did not affect Gatling.
43
The Court will adopt the terms of the above-quoted
preclusion order for the period of ninety days.
In the event
Plaintiff fails to timely file his objections to the preclusion
order, or in the event this Court determines, upon examination of
Plaintiff’s objections, that the terms of preclusion order need
not be lifted/related/altered, the preclusion order will remain
in effect for the remainder of the instant matter and will be
applied to all Plaintiff’s future non-emergent pro se, in forma
pauperis civil rights actions, be they assigned to this Court
upon creation of a new index number or preliminary referred by
the Clerk for this Court’s review prior to creation of a new
index number, with the goal of determining whether Plaintiff
shall be granted leave to commence a new pro se, in forma
pauperis civil action.
III. CONCLUSION
For the foregoing reasons, all Plaintiff’s motions, letters,
notices and analogous documents that were, thus far, left
unresolved by this Court’s prior decisions, will be dismissed as
moot or as not meriting relief.
Plaintiff’s claims previously stayed by this Court will
remain stayed; such stay will continue for ninety days after
conclusion of Plaintiff’s currently undergoing criminal
proceedings and his direct appeal, if such is undertaken.
44
Plaintiff’s currently pending challenges asserting denial of
medical care by unspecified individuals under unspecified
circumstances will be dismissed without prejudice.
Analogously,
Plaintiff’s currently pending unstated claims against Defendants
Muhammad and Does will be dismissed without prejudice.
Plaintiff
will be granted leave to submit an amended complaint detailing
the facts of his claims based on the alleged denial of medical
care and his claims against Defendants Muhammad and Does,
provided that the latter line of claims does not re-raise claims
already dismissed or stayed in this Court’s prior decisions.
The limited order of preclusion entered against Plaintiff
will be adopted, as the law of this case, for the period of
ninety days.
Plaintiff will be allowed to show cause as to why
this order of preclusion should not govern the remainder of this
matter and Plaintiff’s future non-emergent pro se, in forma
pauperis civil rights actions assigned to this Court or referred
for this Court’s review.
An appropriate Order accompanies this Opinion.
s/William J. Martini
William J. Martini,
United States District Judge
Dated: 23rd day of June, 2011
45
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?