MCKINNIE v. HUDSON COUNTY PROSECUTOR OFFICE et al

Filing 48

OPINION. Signed by Judge Kevin McNulty on 03/22/2016. (ek)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DERECK MCKINNIE,

Civ. No. 13-7290 (KM)(MAH)

Plaintiff,
OPINION
V.

HUDSON COUNTY PROSECUTOR OFFICE
et al.,
Defendants.

This civil rights complaint, filed by Dereck McKinnie,

pro Se,

arises

primarily, but not exclusively, from a family dispute over real property in
Jersey City. The real property is indisputably titled to McKinnie’s mother,
Rethie McKinnie, and her son, Bryan. (The complaint attaches a copy of the
deed.) Dereck McKinnie seems to be alleging that because the Appellate
Division vacated a restraining order barring him from the property, and from
contact with his mother, he is entitled to occupancy or even ownership. He has
frequently complained to the police, local prosecutors, and the courts, about
his mother’s continued refusal to admit him to the house, and apparently has
been told that, as owner of the property, she has the right to exclude him.
Ownership of the property has apparently been the subject of a state court
lawsuit, and other actions have been filed, although their outcome is for the
most part unrevealed. This action is filed against the police, the courts, and
McKinnie’s lawyer.

1

I have already filed one order and opinion (ECF nos. 29, 30) dismis
sing
the complaint in its original form. Now before the court are two motion
s to
dismiss the Amended Complaint (“AC”, ECF no. 31). They are:
(a) Motion to dismiss plaintiff’s Complaint pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6) filed on behalf of defendants Hudson County Prosec
utor’s
Office, Erika Patterson, Michelle Field, Michelle Vicari, Priscila Pender
, Miguel
Torres, and Hudson Vicinage of the State of New Jersey Judiciary
(the “Hudson
Defendants”) (ECF no. 33).
(b) Motion of defendant Gerald D. Miller, Esq., pursuant to Fed. R. Civ.
P. 12(b)(1) and (b) (6), to dismiss the Amended Complaint for lack of
jurisdiction and failure to state a claim (ECF no. 34).
The motions are technically unopposed, but I have thoroughly examin
ed
the case file, in which McKinnie lays out his contentions at length.
For the
reasons stated herein, the motions will be granted.
Background
The Amended Complaint cites extensively to 100 pages of exhibits
(ECF
no. 1-1) that were attached to the original complaint. The plaintiff obviou
sly
intends to rely on them, and I have reviewed them in order to get a sense
of the
allegations. For context, I include in this summary allegations agains
t persons
who are not currently movants, such as the police officers.
1.

The 2009 restraining order and reversal
Attached to McKinnie’s complaint in this action is a copy of a decisio
n of
the Superior Court of New Jersey, Appellate Division in R.M. v. D.M.,
No. A
5656-07T3. (09-cv-3293, ECF no. 6; the case may also be found at
2009 WL
4981203 (Dec. 24, 2009).) In that case, the Appellate Division reverses
a
restraining order that, inter alia, barred D.M. from contacting R.M. (his
mother)
and other family members, and barred him from R.M.’s residence and
place of
employment. 2
I am sensitive to the anonymization in the Appellate Division’s decision, but
Mr.
McKinnie has attached it in support of his claims, and it is very clear that McKin
nie
acknowledges that “D.M.” is himself. The reversal of the restraining order
is the
2

That state court action, brought in Family Cou
rt, grew out of D.M.’s
distress at finding that R.M. and her son Byro
n had put a Jersey City house up
for sale. The deed to the property was in the nam
e of R.M. and Byron. On May
10, 2008, D.M. went to the property, where he
saw a “For Sale” sign and
encountered a realtor named Delacent Wom
ack, who was conducting an open
house. D.M. objected that he was the true own
er, having bought the house
with money he received after breaking his leg.
D.M. told his mother that he did
not buy the house for her just so she could sell
it. He was carrying a knife in a
case, and made a threatening remark to the realt
or about “witnessing a
murder.” The police were summoned. The App
ellate Court upheld the trial
court’s fact finding, but ruled that a single threa
tening statement to the realtor
did not constitute a course of domestic viole
nce to a family member. (ECF no.
6)
This decision is foundational to McKinnie’s
claims. He evidently
interprets the lifting of this restraining order
as a declaration that he is entitled
to occupancy, or even ownership, of his moth
er’s house in Jersey City. See
infra.
2.

2009 Action

In July of 2009, McKinnie filed a complaint
(the “2009 Action”) in this
court. McKinnie v. Amodeo & Miller, et al., No.
09-cv-3293. It involved many of
the same matters referred to, however elliptical
ly, here. The complaint in the
2009 Action (No. 09-cv-3293, ECF no. 1) alleg
es that McKinnie was hit by a car
in August 1985, and used the settlement mon
ey to purchase a property at 269
Bergen Avenue in Jersey City. Amodeo and Mill
2 were his attorneys. They
er
allegedly told McKinnie that “he was an undi
sclose[dj owner” of the property.
McKinnie states that he paid for renovations
to the house, including an
extension of the garage in 1994—95, an exten
sion of the house in 1997, and a
foundation of his claims against court personnel,
and also seems to lie behind his
contentions that he was entitled to occupancy or
ownership of the Jersey City house.
2
Apparently a different Miller from Gerald Miller,
an attorney who is sued in this
action.
3

basement floor in 1998. In the 2009 Action, McKinnie sued
Amodeo & Miller.
He also sued Byron K. McKinnie and Rethel McKinnie, saying
that “neither
gave Attorneys or Dereck McKinnie any money to purchase
” the Jersey City
property. (There is also an allegation of “welfare fraud.”) Agains
t other
defendants, Weyer Haeuser Mortgage and Weichert Mortgage,
the 2009
Complaint made no specific allegations, but seemed to seek
discovery. Various
state law causes of action were asserted.
By order filed August 4, 2009, Judge Cavanaugh denied infor
ma
pauperis status and, on review, dismissed the complain with
t
out prejudice for
lack of federal jurisdiction. Although the case was closed, McKin
nie
nevertheless continued to make various filings.
On August 9, 2013, McKinnie moved to amend or reopen the 2009
case.
By order dated October 23, 2013, Judge Cavanaugh deni
ed that motion.
3.
Hudson County Action
Although this is not alleged clearly in the complaint, it appe
ars that
McKinnie sued Byron and Rethel McKinnie in Superior Cou
rt, Hudson County,
No. HUD-C-128-12, over ownership of the property. See ECF
no. 1-1 at 40—55
(various papers, apparently from that action). It appears that
he was
represented by Gerald Miller, Esq., and that the defendants
were represented
by Victor Sison, Esq.. The outcome is not stated; an online searc
h confirms the
existence of the case, but gives no disposition and states only
that the case has
been archived. htoj jporrs.jçiciarv. state.njs (Civil Case
Public Access).
4.
Original Complaint in this Action
On November 22, 2013, Mr. McKinnie filed the original complain
t in this
matter. (ECF no. 1) At first, it was not served. The action was
reassigned to me
on April 21, 2014. (ECF no. 5) On May 27, 2014, I granted the plainti
ff’s
application to proceed in forrna pauperis.
The original complaint consisted of little else but lists of perso
ns and
titles of causes of action. (Exhibits were attached, see ECF no.
1—i, but without
further guidance the court was unable to extract a clear caus
e of action from
4

them.) On April 6, 2015, I entered an order and opin
ion dismissing the original
complaint for failure to state a claim. (ECF nos. 29,
30) That dismissal, based
on the pleading standards of Bell Ati. Corp. v. Twombly
, 550 U.S. 544 (2007),
was without prejudice. My order noted problems with
service, cited the
standards of Rule 8(a), suggested to plaintiff how he
might remedy the
deficiencies in the complaint, and directed him to
the court’s web site for pro se
litigants. I granted leave to file an Amended Complain
t within 45 days.
4.
Amended Complaint in this Action
On May 20, 2015, Mr. McKinnie did file an Amended
Complaint. (ECF’
no. 31, cited as “AC”). Much of the Amended Com
plaint appears to revolve
around McKinnie’s 2008 dispute with his relatives
regarding the sale of the
property that was the subject of the 2009 Complain
t. The deed, attached to
McKinnie’s complaint, is in the name of Byron K.
McKinnie and Rethel
McKinnie. (ECF no. 1-1 at 17) It is not revealed whet
her the property was ever
actually sold. As I have said, the Amended Complain
t relies on, and cites
extensively to, the exhibits (ECF no. 1-1) attached
to the original complaint.
Police
Many of the complaint’s allegations relate to polic offic
e
ers, who are not
movants here, but I summarize those allegations
as background.
The complaint alleges that Police Officer Evan,
apparently joined by
Police Officer Green, confronted him at 269 Bergen
Avenue. Evan spoke to
Rethel McKinnie, restrained McKinnie, and told him
he could not enter the
house. McKinnie told the officer he had had a hear
t attack and that his leg
hurt. The officers gave McKinnie a ride to 181 Pear
sall Avenue in Jersey City
(apparently his home at the time) and let him go.
(AC pp. 5-7) This may have
occurred in January 2010. (See ECF no. 1-1 at 19.)
McKinnie complained to Sgt. Sarno about the incid
ent. Sgt. Sarno
allegedly did not “enforce the court order” or othe
rwise do his job correctly. (AC
at pp. 9—10)
McKinnie complained to Sgt. Rolando, who allegedly
said that Rethel and
Byron McKinnie did not have to let him into the
house, because the house is in
5

their name. (AC at pp. 13—14) Det. Jackson met with Roland
o, and also told
McKinnie to fill out the citizen complaint form that Rolando brough
t out. (AC at
15—16)
Officer Butler did not enter McKinnie’s complaints about three
stolen
vehicles into the New Jersey DMV computer. It seems that he
did check the
garage at 269 Bergen Avenue to see if the cars were there. The
complaint also
refers to police reports. (AC at pp. 11—12)
Attached to the original complaint are copies of titles for three
automobiles: a 1977 Mercedes Benz, a 1985 Mercedes Benz,
and a 1985
Chevrolet. (ECF no. 1—i at 76—78) Attached Jersey City police reports
and
handwritten notes state that McKinnie said he last saw these 30-yea
r-old cars
in 2010. The alleged thieves are not identified. (ECF’ no. 1-1 at
72—75, 79—82)
Municipal court documents, relating to claims and cross-claims
by McKinnie
and his family members, possibly regarding the cars, are also attache
d. (ECF
no. 1-1 at 83—90) A civilian complaint form, filed with the police
on October 19,
2012, complains that they are not enforcing the law and have not
put the
vehicle on the “DMV theft sheet.” A handwritten note giving more
details is
attached. (ECF no. 1-1 at 97) A letter from Det. William Jackson,
dated
January 17, 2013, states that the complaint is being investigated
and requests
an interview. (ECF no. 1-1 at 100)
Court Personnel
Two persons employed by the court system, Michelle Field and
Miguel
Torres, were involved in giving McKinnie a copy of the restraining
order signed
by Judge Joseph Charles Jr. in January 2008. (AC at
pp. 2 5—27) Two other
persons in the Superior Court, Priscilla Pender and Michelle Vicro,
told
McKinnie the case had gone to the Appellate Division and that
they did not
have it any more, or did not have “paperwork” for him. These events
occurred
in November—December 2009. McKinnie complains that they illegall
y furnished
or referred to the restraining order, which was on appeal, and
then reversed.
He faults them for not “checking” with the Appellate Division. (AC
at p. 28—32)
6

McKinnie’s complaint, again, may be that he believes that
the Appellate
Division reversal of the restraining order entitled him to
reentry to the house or
established his ownership to the property (which is actua
lly deeded to his
mother). He seems to have sought to file a motion for
such relief in the local
criminal court on December 30, 2009. (See ECF no. 1-1
at 28) He also seems to
have filed an emergent motion in the Appellate Division
seeking to “re-enter my
rightful home” (ECF no. 1-1 at 37), which was denied (ECF
no. 1-1 at 39).
HCPO/Prosecutors
The complaint alleges that several prosecutors appeared
in Jersey City
Municipal Court in connection with McKinnie’s allegation
s that three of his
cars were stolen. He names them as Linda Ariston, Joe
Taalabaus, and Steven
Hummell (not movants here). The nature of such appe
arances is not stated.
The complaint seems to be that they allegedly failed
to bring charges stemming
from “violation of court order” or against the person, appa
rently unknown, who
stole his cars. (AC at pp. 17—24)
There is also a civilian complaint form filed with the Hud
son County
Prosecutor’s Office on November 15, 2012, for “violatio
n of court order.” (ECF
no. 1-1 at 92) This, too, may stem from McKinnie’s belie
f that the Appellate
Division ordered him restored to ownership or occupanc
y of the Jersey City
house. Handwritten notes indicate that he was sent to Spec
ial Civil Part, but
that no landlord-tenant case was found to be pending.
(ECF no. 1-1 at 94)
A letter from Sgt. Erika Patterson, dated January 15, 2013
, is apparently
a follow-up to the civilian complaint. It is signed in her
capacity as an
investigator in the Internal Affairs Unit of the HCPO (she
is not, as alleged in
the complaint, a prosecutor). The letter states that the
Prosecutor’s office does
not investigate civil matters arising from violation of cour
t orders or appeals,
but states that complaints about members of the Police
Department have been
forwarded to Captain Siranides for review. (ECF no. 1-1
at 95) That seems to be
the foundation of the allegations against her.

7

Attorneys
The most detailed allegations are against Gerald Miller, Esq., an
attorney. The complaint alleges that Miller advised McKinnie that he
was an
“undisclosed owner” of the house at 269 Bergen Avenue. Miller alleged
ly stated
that he could get McKinnie’s house back, or if not, could at least
recover
amounts expended for work on the house, if McKinnie provided receipt
s or
other proof showing the work he had done. (AC at p.33)
According to the complaint, Miller took the case to federal court (an
apparent reference to the 2009 Action). The reference may be instead
, or in
addition, to the Hudson County action. (See p. 4, supra.) Miller alleged
ly failed
to employ “any Discovery, Evidence, Person or say anything about”
that case
(although the complaint attaches exhibits consisting of discovery
requests and
responses in the state case). Miller allegedly presented McKinnie with
a release
form and told him he would receive $20,000, but McKinnie never signed
it.
(Among the exhibits there is an unsigned, undated settlement and release
of
the claims in the Hudson County action that fits that description.
(ECF no. 1-1
at 41)) As for McKinnie’s stolen vehicles, property and court order,
Miller
allegedly stated that “we will worry about that later.” (AC at
pp. 33—34)
Victor Sison, Esq., is alleged to have given false information in court
and
in court documents. (AC at p. 35) Sison seems to have been the attorne
y for
Byron and Rethel McKinnie in the Hudson County action. (ECF no.
1-1 at 59)
The causes of action listed as to all defendants are (1) violations of
due
process and equal protection; (2) 42 U.S.C. 1983; (3) disability discrim
§
ination;
(4) breach of trust; (5) duty; and (6) negligence. The complaint claims
lost
personal property including three motor vehicles, damage to the 269 Bergen
Avenue property, and wear and tear on McKinnie’s 2006 Dodge Magnu
m for,
inter alia, traveling back and forth to court. It claims compensatory and
punitive damages, as well as fees and costs.

8

Standard on Motion to Dismiss
The defendants move to dismiss the Amended Com
plaint for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(1
). Lack of subject
matter jurisdiction may be raised at any time. Iwan
owa v. Ford Motor Co., 67 F.
Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) chall
enges may be either
facial or factual attacks. See 2 Moore’s Federal Prac
tice § 12.30[4] (3d ed.
2007); Mortensen v. First Fed. Say. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir.
1977). A facial challenge asserts that the complain
t does not allege sufficient
grounds to establish subject matter jurisdiction. Iwan
owa, 67 F. Supp. 2d at
438. A court considering such a facial challenge assu
mes that the allegations
in the complaint are true, and may dismiss the com
plaint only if it nevertheless
appears that the plaintiff will not be able to assert
a colorable claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Croz
er—Chester Med. Ctr., 721
F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d
at 438. A factual attack
may involve the court’s receipt of evidence.
The defendants also move to dismiss the Complain
t under Federal Rule
of Civil Procedure 12(b)(6). Rule 12(b)(6) provides for
the dismissal of a
complaint, in whole or in part, if it fails to state a claim
upon which relief can
be granted. The defendant, as the moving party, bear
s the burden of showing
that no claim has been stated. Animal Science Prod
ucts, Inc. v. China Minrnetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011).
At a minimum, a complaint must contain
(1) a short and plain statement of the grounds for the
court’s
jurisdiction, unless the court already has jurisdiction
and the
claim needs no new jurisdictional support; (2) a shor
t and plain
statement of the claim showing that the pleader is entit
led to relief;
and (3) a demand for the relief sought, which may inclu
de relief in
the alternative or different types of relief
FED. R. Civ. P. 8(a).

9

From the seminal modern cases of Bell Ati. Corp.
v. Twombly, 550 U.s.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), the Third Circuit
has extracted a three-step process for reviewing
a complaint:
To determine whether a complaint meets the plead
ing standard,
our analysis unfolds in three steps. First, we outli
ne the elements
a plaintiff must plead to a state a claim for relief.
See [Iqbal, 556
U.S.] at 675; Argueta, 643 F.3d at 73. Next, we
peel away those
allegations that are no more than conclusions
and thus not
entitled to the assumption of truth. See Iqbal,
556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for
well-pled factual
allegations, assume their veracity, and then “dete
rmine whether
they plausibly give rise to an entitlement to relie
f.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is
“a context-specific
task that requires the reviewing court to draw
on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The complaint’s allegations
must be factual, not conclusory, and they must
be sufficient to raise a
plaintiff’s right to relief above a speculative level
, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570; see also
Umland v. PLANCO Fin. Serv.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008).
Discussion
A.

Motion of the Hudson Defendants

The Hudson Defendants, who fall into two categories
, identify themselves
as follows:
First are the Prosecutor’s Office defendants, i.e., the
Hudson County
Prosecutor’s Office (HCPO), the three individual pros
ecutors, and Lt. Erika
Patterson of the HCPO (who is not a prosecutor, but
an investigator in the
Internal Affairs Unit). McKinnie sues them for failin
g to properly investigate or
charge anyone in connection with his three stolen
vehicles or “violation of court
order.” Second are the Court Defendants, i.e., the
New Jersey Superior Court,
Hudson County viciriage, and its employees, Mich
elle Field, Michelle Vicari,
Priscila Pender, and Miguel Torres. They are char
ged with some sort of inaction
with respect to the restraining order.
10

1.

Eleventh Amendment

The Eleventh Amendment poses an initial jurisdictional bar to suit. The
Eleventh Amendment incorporates a general principle of sovereign immunity
which bars citizens from bringing suits for damages against any state in federal
court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-401
(1984); Kelley v. Edison Twp., No. 03-4817, 2006 WL 1084217, at *6 (D.N.J.
Apr. 25, 2006) (citing Bennett v. City of Ati. City, 288 F. Supp. 2d 675, 679
(D.N.J. 2003)); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54
(1996); Edelman v. Jordan, 415 U.S. 651, 662—63 (1974); Hans v. Louisiana,
134 U.S. 1(1890).
It is well settled that the Superior Court, and its employees acting in
their official capacities, partake of the State’s Eleventh Amendment immunity
to suit. See Robinson v. New Jersey Mercer County Vicinage-Family Div., 514
Fed. App’x 146, 149 (3d Cir. 2013)(New Jersey county court was “clearly a part
of the state of New Jersey,” so “both the court itself and its employees in their
official capacities were unconsenting state entities entitled to immunity under
the Eleventh Amendment”) (citing Benn v. First Judicial Dist. Of Pa., 426 F.3d
233, 240 (3d Cir. 2005)); Dongon v. Banar, 363 Fed. App’x 153, 155 (3d Cir.
2010) (citing Johnson v. State of N.i, 869 F. Supp. 289, 296-98 (D.N.J. 1994)).
The same is true of the County Prosecutors’ office and its employees when they
are engaged in the investigation and prosecution of cases. Beightier v. Office of
Essex Cty. Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009) (citing Coleman v.
Kaye, 87 F.3d 1491, 1505 (3d Cir.1996)); In re Camden Police Cases, No. CIV.
10-4757RBK/JS, 2011 WL3651318, at*3 (D.N.J. Aug. 18, 2011).
That potentially leaves claims against individual defendants for non
official acts, or claims against them in their individual capacities. As to these,
there are multiple other barriers to this action.
2.

Statute of Limitations- Court Defendants

The claims against the Court Defendants—Field, Torres, Pender, and
Vicari—are barred by the statute of limitations. Whether these are viewed as

11

constitutional claims under 42 U.S.C

§ 1983 or as state tort claims, the statute

of limitations is the same: two years. Section 1983 claims are subject to New
Jersey’s two-year personal injury tort statute of limitations. N.J. Stat. Ann.
§
2A: 14-2(a). See Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir. 2013) (per
curiam) (citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)).
Although the statute of limitations is an affirmative defense, a dismissal is
permissible where the action’s untimeliness is clear, based on the complaint
and items properly considered on a motion to dismiss.
The claims against the Court Defendants all relate to the 2008
altercation at the Jersey City house and the resulting restraining order. That
restraining order is alleged to have been entered in January 2009 and vacated
by the Appellate Division’s decision on December 24, 2009. All of the
allegations against these defendants date from their interactions with McKinnie
from November 2008 through December 2009.
This action was filed on November 22, 2013, nearly three years after the
last fact pled against these Court Defendants. The claims against Field, Torres,
Pender, and Vicari are barred by the two-year statute of limitations.
3.

Failure to state a claim/Qualified immunity

The Court Defendants and Patterson cite qualified immunity, but in a
manner that renders their motion equivalent to an ordinary Rule 12(b)(6)
motion to dismiss. I agree that the complaint fails to state a cognizable claim
against them.
“[Q]ualified immunity shields government officials from civil liability as
long ‘as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). It requires a two-step analysis: the first
step asks whether “the official’s conduct violated a constitutional right” at all.
McGreevy, 413 F.3d at 364 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
The second requires an analysis of whether “the right that the defendant’s

conduct allegedly violates was a clearly established one, about which a
reasonable person would have known.” Gruenke v. Seip, 225 F.3d 290, 298 (3d
Cir. 2000). Because the second step is somewhat fact-bound, it will often be
unsuitable for disposition on a motion to dismiss. The first step, however, may
be considered on a Rule 12(b)(6) motion, where the question is simply whether,
as a matter of law, a constitutional violation has been alleged. Here, I confine
myself to that first step. As a result, the inquiry is functionally equivalent to a
Rule 12(b)(6) motion, and I evaluate the complaint by that standard.
The complaint alleges that Vicari, Pender, Torres, and Field, employees of
the Superior Court, Hudson County, furnished him a copy of the restraining
order, stated that because the matter was on appeal they had no current
involvement or “paperwork” for McKinnie, and the like. McKinnie’s frustration
3
is palpable, but his cause of action is not.
The cause of action most consonant with these allegations might be a
due process claim based on obstruction of access to the courts. See generally
Monroe v. Beard, 536 F.3d 198, 205 (3d Cir.2008) (per curiam) (citing Lewis v.
Casey, 518 U.S. 343, 354—55, 116 S. Ct. 2174 (1996)). Such a claim requires
identification of an “arguable,” “nonfrivolous” underlying cause of action, either
anticipated or lost, and show that the defendant frustrated the plaintiff’s efforts
to present that claim. Id. at 35 1—53; Christopher v. Harbury, 536 U.S. 403, 415,
122 S. Ct. 2179 (2002). This complaint does not plead any such facts. The
sense seems to have been that these employees of the Superior Court, Hudson
County, should not have furnished McKinnie with a copy of the restraining
order, which he regarded as illegal, or should have contacted the Appellate
Division at his urging within days after that order was vacated. Nothing in
these allegations indicates that these employees did anything but their job, or
that anything they told him (for example, that the Appellate Division currently

I reiterate that these allegations, dating from 2009, are barred by the statute of
limitations. Their failure to state a claim is an alternative grounds for dismissal.
13

had the file, and that they did not) was incorrect. Certainly there
is no
indication that they frustrated the presentation of any claim.
Lt. Patterson, who works for the prosecutor’s office as an investi
gator in
the Internal Affairs Unit, is misidentified as a prosecutor. The
complaint alleges
that she was informed about the stolen cars and “violation
of court order” but
failed to charge anyone criminally (which does not seem
to have been her job,
but let that pass).
It appears from the exhibits that Patterson’s sole involvement
is writing
the January 15, 2013, letter. (ECF no. 1-1 at 95) That letter,
responding to
McKinnie’s complaint by stating that the Office does not investi
gate civil
matters such as “violation of a court order,” but that complaints
about
members of the Police Department have been forwarded to
Captain Siranides
for review. (ECF no. 1-1 at 95) No wrongdoing of any kind
is apparent from
Patterson’s letter or the vague allegations against her. As again
st her, the
complaint is dismissed for failure to state a claim.
4.

Notice under NJ Tort Claims Act

To the extent that the complaint alleges state-law torts, it
also fails
because McKinnie has not pled that he filed a notice purs
uant to the New
Jersey Tort Claims Act (NJTCA). This is an alternative ground
for dismissal of
the claims, which are dismissed on the grounds stated above.
I state it for
plaintiff’s guidance as to any claims that might survive. As
to them, I will
permit McKinnie to allege and prove filing of a NJTCA notice,
if it exists.
Under the NJTCA, “[n]o action shall be brought against a public
entity or
public employee under [the NJTCA] unless the claim upon
which it is based
shall have been presented in accordance with the proced
ure set forth in this
chapter.” N.J. Stat. Ann. § 59:8-3. That “procedure” require
s that a notice of
claim be filed with the public entity, generally within 90
days after the accrual
of the cause of action. N.J. Stat. Ann.

§ 59:8-8. See Velez v. City of Jersey City,
14

180 N.J. 284, 294—96 (2004); Cliett v. City of Ocean City,
No. CIV. 06-4368
(JBS), 2007 WL 2459446, at *2 (D.N.J. Aug. 24, 2007).
Only thereafter, once
six months have passed, may the claimant file suit. N.J.
Stat. Ann. 59:8-8.

§

The deadline may be extended based on “extraordinary
circumstances,” but
only if application is made within one year after accru
al of the claim, which is
long past. See N.J. Stat. Ann. § 59:8-9. The Notice is
a jurisdictional
prerequisite, and in its absence, the action will be dism
issed with prejudice.
See Bonitsis v. N.J. Inst. Of Tech., 363 N.J. Super. 505,
516 (App. Div. 2003);
Ezzi v. DeLaurentis, 172 N.J. Super. 592 (Law Div. 1980).
Pre-suit notice is a condition that the State may perm
issibly place upon
its waiver of sovereign immunity. To the extent McKin
nie has failed to comply
with the NJTCA notice requirement, his state law tort claim
s against public
entities and employees would be barred on this alternativ
e basis.
B.

Motion of defendant Miller

Defendant Gerald D. Miller, Esq., an attorney, moves sepa
rately for
dismissal. I therefore separately consider the Amended
Complaint’s allegations
against Miller, which are as follows. (AC at
pp. 33—35)
The Amended Complaint alleges that Miller told McKinnie
he was an
“undisclosed owner” of a house at 269 Bergen Avenue, Jerse
y City, New Jersey.
Miller allegedly stated that he could get McKinnie’s hous
e back, or if not, could
at least recover amounts expended for work on the house,
if McKinnie provided
receipts or other proof showing the work done. Accord
ing to the complaint,
Miller took the case to federal court, but did not employ
“any Discovery,
Evidence, Person or say anything about” that case, the
2009 Action. Miller
allegedly presented McKinnie with a release form and told
him he would receive
$20,000, but McKinnie never signed it. As for McKinnie’s stolen
vehicles,
property and court order, Miller stated that “we will worry
about that later.”
One potential basis for federal jurisdiction is the presentati
on of a claim
arising under federal law. See 28 U.S.C. 1331. That claim,
however, must be
§
15

“colorable”; an “insubstantial” claim is not sufficient to confer federal-question
jurisdiction. Arbaugh v. Y& H Corp., 546 U.S. 500, 513 & n. 10, 126 5. Ct.
1235, 1244 & n.10 (2006), Counts 1, 2, and 3 cite federal law: specifically, the
equal protection and due process clauses of the U.S. Constitution, 42 U.S.C.

§

1983, and disability discrimination.
No facts are pleaded to indicate that Miller could conceivably have
committed a violation of these federal constitutional provisions and statutes. As
a matter of law, he could not.
A constitutional or

§ 1983 claim requires state action,

i.e., action by or

behalf of some governmental entity. “The traditional definition of acting under
color of state law requires that the defendant in a

§ 1983 action have exercised

power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”’ W. v. Atkins, 487 U.S. 42,
49, 108 5. Ct. 2250, 2255 (1988) (quoting United States v. Classic, 313 U.S.
299, 326, 61 S. Ct. 1031, 1043 (1941)). Miller is a private attorney, not a
government actor. See Singh v. Harrison, 412 F. App’x 430 (3d Cir. 2011)
(upholding dismissal of

§ 1983 claim because private attorney not state actor).
4

The due process and equal protection clauses, as well as

§ 1983, are

protections against government action, not sources of claims between private
parties.

See also Love v. Law Office of Roberts, No. 11—4500, 2011 WL 4916196, at *2
(D.N.J. Oct.17, 2011) (“As a private attorney, Defendant Roberts is not a state actor for
purposes of 1983.”) (citing Polk Cnty. v. Dodson, 454 U.S. 527, 535 (1981); Steward
v. Meeker, 459 F.2d 669 (3d Cir.1972); Thomas v. Howard, 455 F.2d 228 (3d
Cir. 1972)); Catanzaro v. Collins, No. 09—0922, 2010 WL 1754765, at *8 (M.D. Pa. Apr.
27, 2010) (“Private attorneys and public defenders are generally not considered state
actors for § 1983 purposes when acting in their capacities as attorneys.”) (citing
Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citing Polk Cnty,
supra)), affd by 447 F. Appx 397 (3d Cir.2011) (per curiam).

As for disability discrimination,

the only fact pled is that Miller knew

McKinnie had had a heart attack and a leg injury. The nature of any alleged
actionable discrimination by Miller is unmentioned. (AC at
p. 34)
Claims 1, 2, and 3 are so devoid of support that they fail to set forth a
colorable basis for federal question jurisdiction and must be dismissed under
Rule 12(b)(1). Even assuming they passed that jurisdictional threshold, they
would be dismissed for failure to state a claim under Rule 12(b)(6).
Claims 4, 5, and 6 I will interpret as state-law claims of attorney
malpractice. As to these, the basis for this court’s subject matter jurisdiction
must be diversity of citizenship. The relevant portion of the diversity statute
provides that “[t]he district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between
citizens of different States.”
28 U.S.C. § 1332(a). See also Lincoln Ben. Lzfe Co. v. AEI Life, LLC, 800 F.3d 99,
...

104 (3d Cir. 2015) (quoting statute).
To be a “citizen” of a state is not merely to be a resident of that state, or
to receive mail there. For purposes of diversity jurisdiction, citizenship is
synonymous with domicile, and “the domicile of an individual is his true, fixed
and permanent home and place of habitation. It is the place to which,
whenever he is absent, he has the intention of returning.” Viandis v. Kline, 412
U.S. 441, 454, 93 5. Ct. 2230 (1973). Factors relevant to domicile include
“declarations, exercise of political rights, payment of personal taxes, house of
residence, and place of business.” Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d
Cir. 1972) (internal quotation omitted). “Other factors to be considered may
include location of brokerage and bank accounts, location of spouse and
family, membership in unions and other organizations, and driver’s license and
vehicle registration.” McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290
I will assume that the reference is to the Americans with Disabilities Act (ADA),
which prohibits discrimination in certain kinds of employment, state and local
government, public accommodations, commercial facilities, transportation, and
telecommunications. See 42 U.S.C. § 1201 et seq.
17

(3d Cir. 2006). “The party asserting diversity jurisdiction
[here, plaintiff
McKinnie] bears the burden of proof.” IcL at 286.
Neither party submits affidavits or other proofs as to jurisdi
ction. I must
therefore consider this as a facial challenge to the Complaint.
The Complaint
does not allege that plaintiff and defendant are citizens of
different states. I am
disinclined to be lenient, because all of the facts pled in
the Complaint seem to
suggest otherwise, but I do not prejudge the matter. Nor
6
does the complaint
allege an amount in controversy that exceeds $75,00
0.
I will therefore dismiss the claims against Miller for failure
to plead
federal subject matter jurisdiction. Because this could be
a case of inartful
pleading by a pro se defendant, however, this dismissal
will be without
prejudice to the filing of a Second Amended Complaint that
alleges, with
specificity, that plaintiff McKinney is a citizen of a state
different from that of
the defendants against whom he asserts diversity-based
state law claims, and
that the amount in controversy exceeds $75,000.
I also add that if I had jurisdiction, I would dismiss the allegat
ions for
failure to state a claim. See Iqbal, supra; Twombly, supra.
What Miller
supposedly did wrong, when he did it, or even what litigati
on is referred to,
cannot be gleaned from the complaint. I could draw conclu
sions from the
exhibits, but I would be guessing.
6

on the docket, plaintiff has listed a mailing address in Auburn,
New York. That
is not a substitute for an allegation of citizenship. Defendant Miller
states that even if
McKinney is a resident there, he is not domiciled there. Defendant
Miller presents no
affidavits or other proofs; he merely makes factual statements in
his brief. I therefore
disregard them, and consider this solely as a facial challenge to
the complaint.
McKinnie sues, not just Miller, but a host of other defendants.
“For over two
hundred years, the [diversity jurisdiction] statute has been unders
tood as requiring
‘complete diversity between all plaintiffs and all defendants.” Lincol
n Ben. Life. Co.,
800 F.3d at 104. “Complete diversity requires that, in cases with
multiple plaintiffs or
multiple defendants, no plaintiff be a citizen of the same state
as any defendant.”
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F’.3d 412, 419
(3d Cir, 2010). As to
common claims, diversity would require that McKinnie be a citizen
of a different state
from all defendants.

18

CONCLUSION
For the foregoing reasons, the motion to dismiss the
Amended Complaint
filed by defendants Hudson County Prosecutor’s Office
, Erika Patterson,
Michelle Field, Michelle Vicari, Priscila Pender, Miguel
Torres, Hudson Vicinage
of the State of New Jersey Judiciary, are GRANTED
and the complaint is
DISMISSED WITH PREJUDICE as against them. The
motion to dismiss filed by
defendant Gerald D. Miller is GRANTED and as to Mill
er, the Amended
Complaint is DISMISSED WITHOUT PREJUDICE.
Dated March 22, 2016
Newark, New Jersey

KEVIN MCNULTY
United States District Judge

19