LOZADA v. CASALE et al
Filing
23
OPINION. Signed by Judge Faith S. Hochberg on 7/17/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMAS LOZADA, JR.,
v.
Plaintiff,
ANTHONY CASALE, ET AL.,
Defendants.
:
:
:
: Civil Case No. 13-2090(FSH)
:
: OPINION
:
: Date: July 17, 2014
:
:
:
HOCHBERG, District Judge;
This matter comes before the Court upon Defendants’, Probation Division, Vicinage
Chief Probation Officer Anthony Casale, Senior Probation Officer Andrea Genova, and
Administrative Specialist Rosanne Lomolino’s (“Defendants”) motion to dismiss (Dkt. No. 17),
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). This Court has reviewed the
submissions of the parties and considered the motion pursuant to Federal Rule of Civil Procedure
78.
I.
BACKGROUND
During Plaintiff’s incarceration at Yardville Youth Correctional Facility, he paid child
support to his daughter. In 1991, Plaintiff purportedly received a court order providing Rosa
Torres with temporary custody of both his daughters, and required him to pay thirty dollars a
week in child support.
Once Plaintiff was released from prison, he allegedly filed a motion in New Jersey State
Superior Court, in the Family Part, contesting his obligation to pay child support. Plaintiff
maintains that he was given custody of his daughters, and advised the Probation Division that
Ms. Torres should have been paying child support to him. Plaintiff maintains that he nevertheless
continued paying child support; though; he does not specify whether those payments were for
current obligations or arrears. Plaintiff further asserts that the Probation Division failed to
acknowledge his payments, and that he was consequently incarcerated numerous times over the
years due to his purported failure to pay child support.
By 1997, Plaintiff owed $4,439.00 in arrears, which increased to $6,575.50 as of October
5, 1999. As a result, Plaintiff retained counsel and requested an audit of his probation account.
Plaintiff appeared before the Honorable John O’Shaunessy, J.S.C., on August 13, 2010, to
request an audit of his probation account. After reviewing Plaintiff’s probation account, Judge
O’Shaunessy found that Plaintiff owed $5,700.00 in arrears. Following Judge O’Shaunessy’s
decision, Plaintiff allegedly requested a record of the hearing. Plaintiff alleges that he was not
provided with the correct tape.
On April 16, 2012, Plaintiff filed a lawsuit in the Law Division against the Superior
Court of New Jersey, Probation Division, Child Support Enforcement Unit. In that lawsuit, much
like the instant one, Plaintiff alleged that he was falsely imprisoned and required to pay child
support arrears, even though he had not been under any obligation to pay child support. Plaintiff
also alleged in the Law Division action that the Probation Division had misplaced his child
support payments.
On January 18, 2013, Defendants in the Law Division action filed a motion to dismiss
Plaintiff’s Complaint. Defendants argued that Plaintiff’s claims against Defendants were barred
by sovereign immunity and quasi-judicial immunity. Additionally, Defendants argued that
Plaintiff’s claims were also without merit because Defendants were not “persons” amenable to
2
suit under 42 U.S.C. §1983 or N.J. Stat. Ann §10:6-1 to -2. 1 Following oral arguments on
February 8, 2013, the Honorable Lawrence M. Maron, J.S.C., granted Defendants’ motion to
dismiss the complaint and denied Plaintiff’s motion to amend.
On November 12, 2013, Plaintiff filed the instant lawsuit asserting a claim for the
violation of his due process rights, presumably brought under 42 U.S.C § 1983, as well as claims
for: theft by deception, alienation, mental cruelty, mental anguish, false imprisonment, abuse of
power, contempt, and defamation. Plaintiff seeks: (1) an order from this Court directing the
Superior Court of New Jersey, Chancery Division, Family Part (“Family Part”) to audit his child
support accounts; (2) compensation for false imprisonment due to his alleged failure to pay child
support; (3) reimbursement for child support payments; (4) punitive damages; (5) the restoration
of his driving privileges which were suspended due to Plaintiff’s purported failure to comply
with his child support obligations; (6) the termination of all child support liens and garnishments
and (7) a restraining order to prohibit the Probation Division from enforcing child support orders
against him.
II.
STANDARD OF REVIEW
a. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), challenges the
existence of a federal court’s subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When subject
matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of
persuasion. McNutt v. Gen. Mortors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). “Even
in cases brought by pro se plaintiffs, the Third Circuit Court of Appeals has affirmed the
dismissal of actions, which contain only vague and conclusory allegations. Gray v. Creamer, 465
1
N.J. Stat. Ann §10:6-1 to -2 is New Jersey’s equivalent of 42 U.S.C §1983.
3
F.2d 179, 182 n. 2 (3rd Cir. 1972); see also Rotolo, 532 F.2d at 922 (approving Gray in dictum).
However, the Court should consider a plaintiff's pro se status when evaluating the specificity of a
complaint. Haines v. Kerner, 404 U.S. 519, 520 (1972).
A motion to dismiss for lack of subject matter jurisdiction may either (1) “attack the
complaint on its face” or (2) “attack the existence of subject matter jurisdiction in fact, quite
apart from any pleadings.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d
Cir.1977). “The defendant may facially challenge subject matter jurisdiction by arguing that the
complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction.”
D.G. v. Somerset Hills School Dist., 559 F.Supp.2d 484, 491 (D.N.J.2008). On a facial attack,
“the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891.
“A defendant can also attack subject matter jurisdiction by factually challenging the
jurisdictional allegations set forth in the complaint.” D.G., 559 F.Supp.2d at 491.
Upon a factual attack, by contrast, the court need not presume the truth of the allegations
and “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Mortensen, 549 F.2d at 891. Moreover, when considering a factual challenge to the
Court's jurisdiction under Rule 12(b)(1), the Court is “not confined to the allegations in the
complaint ... and can look beyond the pleadings to decide factual matters relating to jurisdiction.”
Cestonaro v. U.S., 211 F.3d 749, 752 (3d Cir.2000) (citing Mortensen, 549 F.2d at 891). In doing
so, the court should “consider the allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the Plaintiff.” Gould Elecs., Inc. v. United
States, 220 F.3d 169,176 (3rd Cir. 2000). Nevertheless, for either a facial or factual attack, the
burden is on the plaintiff to prove jurisdiction. McNutt, 298 U.S. 178, 189 (1936).
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b. Federal Rule of Civil Procedure 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating . . . a claim requires
a complaint with enough factual matter (taken as true) to suggest the required element. This
does not impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part
analysis. “First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and
alterations omitted).
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings.
However, an exception to the general rule is that a
‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without
converting the motion [to dismiss] into one for summary judgment.’” In re Burlington Coat
5
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal citations omitted) (emphasis in
original).
III.
DISCUSSION
Defendants move to dismiss Plaintiff’s Complaint on several grounds. First, Defendants
argue that the statue of limitations bars Plaintiff’s claims. Second, Defendants argue that this
Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Third,
Defendants argue that they are entitled to Eleventh Amendment immunity because they are not
“persons” amenable to suit under 42 U.S.C. § 1983. The Defendants’ arguments are considered
in turn. 2
a. The Statute of Limitations
Plaintiff asserts a variety of claims against multiple Defendants arising out of the alleged
wronging of the Probation Department. Defendants argue that this Court should dismiss
Plaintiff’s claims for damages because they are barred by the statute of limitations. This Court
agrees.
Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of
limitations of the state in which the cause of action accrued. Cito v. Bridgewater Twp. Police
Dep't, 892 F.2d 23, 25 (3d Cir.1989). For section 1983 actions in New Jersey, “[T]hat statute is
N.J.S.A. 2A: 14–2, which provides that an action for injury to the person caused by wrongful act,
neglect, or default, must be convened within two years of accrual of the cause of action.” Brown
v. Foley, 810 F.2d 55, 56 (3d Cir.1987). Therefore, the limitations period for Tomas Lozada’s
claims is two years. See also O'Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006).
2
For the reasons stated below, this Court does not reach several of Defendants’ proffered
grounds for dismissal, i.e., the Younger Doctrine, Prudential Standing, and Quasi-Judicial
Immunity.
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Defendants argue that Plaintiff’s constitutional and tort claims relating to Defendants’
alleged wrongdoing accrued on June 14, 2011, when Plaintiff filed a Notice of Tort Claims.
Therefore, when Plaintiff filed his Complaint on November 12, 2013, it was more than two years
past the accrual date. 3 Plaintiff does not dispute these facts, but submits that since the
wrongdoing still exists, the statute of limitations does not bar his lawsuit. 4
In an effort to overcome the apparent untimeliness of his claims, the Plaintiff seeks to
rely upon the “continuing violations theory”. The continuing violations theory states, “a plaintiff
may pursue a claim for conduct that standing alone would have been untimely as it occurred
before the start of the applicable statute of limitations filing period as measured back from the
time of the filing of the action.” Muhammad v. NJ Dep't of Corr., 396 F. App'x 789 (3d Cir.
2010) (citing McAleese v. Brennan, 483 F.3d 206, 218 (3d Cir.2007)). The application of the
continuing violations theory may be appropriate in cases in which a plaintiff can demonstrate
that the defendant's allegedly wrongful conduct was part of a practice or pattern of conduct in
which he engaged both without and within the limitations period. McAleese v. Brennan, 483 F.3d
206, 218 (3d Cir. 2007). “’To establish that a claim falls within the continuing violations theory,
a plaintiff must do two things’: (1) ‘he must demonstrate that at least one act occurred within the
filing period[,]’ and (2) he must establish that the conduct is ‘more than the occurrence of
isolated or sporadic acts,’ i.e., the conduct must be ‘a persistent, on-going pattern.’” McAleese v.
Brennan, 483 F.3d 206, 218 (3d Cir. 2007).
3
The latest date that Plaintiff could have filed within the limitations period was June 14, 2013.
4
Plaintiff alleges that the Probation Department still did not forward money to his children
and/or he has not received an audit of his child support account.
7
Plaintiff fails to establish that Defendants’ conduct is more than the occurrence of
isolated or sporadic acts. 5 See McAleese v. Brennan, 483 F.3d 206, 219 (3d Cir. 2007) (“It is
clear that the three parole denials over the six-year period from 1995 to 2001 are “isolated or
sporadic acts” and not “a persistent on-going pattern”). Thus, Plaintiff’s attempt to circumvent
the statute of limitations falls short. Accordingly, this Court finds that Plaintiff’s claims are
barred by the Statute of Limitations.
b. The Rooker-Feldman Doctrine
As a separate and alternative ground for dismissing Plaintiff’s Complaint, this Court finds
that Plaintiff’s Complaint is an impermissible attempt to appeal a concluded state court
proceeding. Accordingly, pursuant to the Rooker-Feldman Doctrine, this Court does not have
subject matter jurisdiction to decide the case.
The Rooker-Feldman Doctrine “[D]eprives a federal district court of jurisdiction…to
review a state court adjudication.” Turner v. Crawford Square Apts. III, L.P., 449 F.3d 542
(2006). The Rooker-Feldman Doctrine, precludes cases “brought by state court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.
Exxon Mobil Corp. V. Saudi Basic Indus., Inc., 554 U.S. 280, 294 (2005). To invoke the RookerFeldman Doctrine four requirements must be met: “(1) The federal plaintiff lost in state court;
(2) the plaintiff complain[s] of injuries caused by the state-court judgments; (3) those judgments
were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court
5
Although the Plaintiff claims that Probation Department continues to wrong him, the record
does not surmise a persistent pattern of wrongdoing, thus, the “continuing violations theory” is
not applicable to the instant case.
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to review and reject the state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 166 (3rd Cir. 2010) quoting Exxon, 554 U.S. at 284).
Plaintiff argues that his Complaint should not be dismissed pursuant to the RookerFeldman Doctrine because the Law Division never provided him with an opportunity to raise
federal claims. Plaintiff maintains that the State Court clearly avoided the federal issues, since it
did not want to make a ruling on 42 U.S.C. § 1983. However, Plaintiff is mistaken. In Judge
Maron’s decision, dated February 8, 2013 (Dkt. No. HUD-L-1984012), the Superior Court of
New Jersey held that even though the Plaintiff did not specifically make claims pursuant to 42
U.S.C. § 1983, Defendants are not persons subject to liability under either the Federal or New
Jersey Civil Rights Act. Thus, Judge Maron made a ruling on 42 U.S.C. §1983. More
specifically, In Judge Maron’s reasoned analysis, he noted,
[B]ecause the Hudson County Probation Child Support Division
has statutory power to collect money owed, this action constitutes
an official act. As the United States Supreme Court held in Will v.
Michigan Department of State Police, [491 U.S. 58 (1989)],
neither a State nor its officials acting in their official capacities are
persons under section 1983. Furthermore, the plaintiff has not
established that any action taken by the defendants were outside
the scope of their duties. Therefore, even if he Court were to
assume that the plaintiff’s intent was to file a claim under either
section 1983 or the New Jersey Civil Rights Act, the Court finds
that the Hudson Country Probation Child Support Division is not a
person subject to liability. 6
6
As a separate and alternative ground for dismissal, Defendants are protected by Eleventh
Amendment immunity. Eleventh Amendment immunity extends to state agencies and state
officers who act on behalf of the state, and bars recovery for damages in suits brought pursuant
to 42 U.S.C. §1983. See Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997);
Will v. Michigan Dep’t of State Police, 491 U.S. 64 (1989). Because Plaintiff has not proven that
Defendants were acting outside their official capacities, the Eleventh Amendment provides
immunity to the defendants.
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Additionally, Plaintiff’s request to direct an audit of his child support accounts, and to restrain
the Probation Division from enforcing child support orders against him, is denied pursuant to the
Rooker-Feldman Doctrine. On August 17, 2013, after reviewing Plaintiff’s child support
accounts, Judge O’Shaunessy found that Plaintiff owed $5,700.00 in arrears. Thus, Plaintiff
cannot circumvent the State appellate process by using the Federal Courts to review a state court
judgment. Therefore, this Court holds, that Plaintiff’s Complaint is dismissed for lack of subject
matter jurisdiction.
IV.
CONCLSUION
Plaintiff’s Complaint is dismissed because it is barred by the two-year statute of
limitations applicable to this case. Additionally, as a separate and alterative ground, Plaintiff’s
Complaint is dismissed, pursuant to the Rooker-Feldman doctrine, because this Court does not
have subject matter jurisdiction to decide the case. An appropriate Order shall issue.
s/ Hon. Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.
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