WYKOWSKI v. BERSE et al
OPINION. Signed by Judge Kevin McNulty on 5/21/15. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 13-cv-7851 (KM)
JENNY BERSE, ESQ. AND HON.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff Wieslaw Wykowksi, appearing pro Se, brought this action
following a palimony and child support proceeding in the Family Division of the
Superior Court of New Jersey. Defendant Maureen Sogluizzo (“Judge
Sogluizzo”) is the judge who presided over that proceeding. Defendant Jenny
Berse is the attorney who represented Wykowski’s former partner. Wykowski
alleges that certain of the orders entered by Judge Sogluizzo were erroneous
and that both defendants violated his due process rights. Now before the Court
are the defendants’ motions to dismiss the Complaint. For the reasons set forth
below, the motions are granted and the Complaint will be dismissed.
Wykowski’s former partner, Grazyna Kozikowska, commenced a
palimony and child support proceeding against him in the Family Division of
the Superior Court of New Jersey (the “state court action”). The matter was
tried over the course of eight days in front of Judge Sogluizzo. (Dkt. No. 15-2,
at 197) On June 30, 2010, Judge Sogluizzo entered an order and judgment
requiring Wykowski, inter alia, to pay a lump sum award of $640,633 to
Kozikowska and to make weekly payments to support their two children. (Id. at
The order permitted Wykowski to offset the lump sum award by
transferring certain real property to Kozikowska. (Id. at 198) The real property
in question was an apartment building in Bayonne, New Jersey, that had an
appraised value of $450,000. Wykowski owned and resided in the building; he
also managed the property as a landlord and collected rent from its tenants.
The order provided that Defendant Berse, Kozikowska’s attorney, would be
appointed attorney-in-fact “for the specific purpose of signing the Deed,
Affidavit of Consideration.., and all other documents required to transfer title
and ownership” of the property. (Id.) If Wykowski elected to transfer the
property, the palimony award would be reduced to $190,633, which he was
required to pay within 30 days of the order. (Id. at 199) Wykowski appears to
have elected the transfer option, but he did not pay the balance of the lump
sum award within the time specified by the court.
On October 26, 2010, Judge Sogluizzo entered an order revising the
manner in which the June 30, 2010 judgment was to be executed. Wykowksi
was ordered to immediately post a $190,633 bond. Until that sum was paid in
full, he was required to make monthly payments to Kozikowska in the amount
of $2,200. (Dkt. No. 1, at 39) The order provided that Berse would hold the
deed to the apartment building in escrow until the judgment was satisfied.
On February 7, 2011, Judge Sogluizzo entered another order requiring
Wykowski to pay $26,373.60. (Id. at 32) This order is not included in the
record; it is unclear how this sum relates to the payments specified in the two
On February 22, 2011, Judge Sogluizzo entered a fourth order requiring
Wykowski to vacate his apartment building. (Id. at 22) The order formally
transferred ownership of the building to Kozikowska and instructed Wykowski
to inform the building’s tenants that all rents should now be paid to her. (Id.)
The order also required Wykowski to turn over to Berse the titles and keys to
any automobiles that he owned. Berse was again “appointed attorney-in-fact to
sign any and all Titles for the above cars so that plaintiff can sell said cars.” (Id.
On February 26, 2011, Wykowksi was arrested for failing to make the
$26,373.60 payment required by the February 7, 2011 order. (Id.) Wykowksi
says that he paid this amount on September 10, 2011, but there is no
supporting documentation to corroborate this assertion. (Id. at 14) He also
alleges that the warrant for his arrest, which was signed by Judge Sogluizzo,
contained several inaccuracies, including erroneous descriptions of his social
security number, date of birth, and height. Wykowksi was imprisoned for one
month before he was released. (Id. at 15). It is unclear from the record whether
he ever made the $26,373.60 payment.
Wykowski alleges that while he was in prison, Berse forged his signature
in order to transfer the deed to his apartment building to Kozikowska. (Id. at
17). He further alleges that although his apartment “was supposed to be
sealed,” all of his personal property was discarded by the time he returned. (Id.
at 16). Wykowski also claims that his three automobiles were “taken” by
Kozikowska. (Id.) All told, he estimates that his lost property was worth
Wykowski appealed the June 30, 2010 judgment to Appellate Division of
the New Jersey Superior Court. While that appeal was pending, he filed a prior
action in this Court that purported to “seek an appeal” of the state court
judgment.’ On May 29, 2012, Judge William J. Martini of this Court sua
sponte dismissed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for
Wykowski’s prior complaint was assigned Civ. No. 2: 12-cv-0 1964. The Order
dismissing the complaint is at Dkt. No. 4.
failure to state a claim. Judge Martini stated: “[Wykowski] has failed to
any violation of federal law or provide any other grounds for this Court’s
subject jurisdiction. Further, it is black letter law that a federal district court
cannot act as a court of appeal for a state court decision.”
On September 26, 2012, the Appellate Division rejected Wykowski’s
appeal and affirmed the judgment.
On June 21, 2013, Judge Sogluizzo entered another order stating that
Wykowski “continues to owe” the $190,633 amount stated in the prior orders.
(Id. at 35)
On December 27, 2013, Wykowski commenced this action by filing a
one-page complaint. The complaint does not specify a cause of action.
Wykowski alleges that the defendants committed an “injustice” by failing
provide him with a Polish-speaking interpreter during the child suppor
proceedings and by taking his property. Wykowski states that he has been
homeless following the dispossession of his apartment, personal property,
automobiles. He relates that he was arrested “with the wrong description
the wrong social security.” He also contests the award of child suppor
children over 21 and the refusal to order a DNA test. The complaint states
Wykowski is “here appealing my case on the basis below.”
On June 13, 2014, Judge Sogluizzo filed a motion to dismiss the
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6
(Dkt. No. 13). Berse joined in Judge Sogluizzo’s motion on August 20, 2014.
(Dkt. No. 23-1).
A potential ground for dismissal of certain claims is the Rooker-Feidman
doctrine, which is jurisdictional. See Taliaferro v. Darby Tp. Zoning Bd., 458
F.3d 181, 192 (3d Cir. 2006); Saunders v. Philadelphia Dist. Attorney’s
See Dkt. No. 4.
546 F.App’x 68, 71 (3d Cir. 2013). A challenge to jurisdiction
may be brought
under Fed. R. Civ. P. 12(b)(1), on either a factual or facial basis.
See 2 Moore’s
Federal Practice § 12.30 (3d ed. 2007); Mortensen v. First Fed.
Say. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asser
ts that the
complaint does not allege sufficient grounds to establish subjec
jurisdiction. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424,
438 (D.N.J. 1999).
A court considering such a facial challenge assumes that the allegat
ions in the
complaint are true, and may dismiss the complaint only if it
appears that the plaintiff will not be able to assert a colorable
claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester
Med. Ctr., 721
F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
Potential grounds for dismissal of certain of the Section 1983
include judicial immunity and lack of state action, matters that
may be raised
by a motion to dismiss under Fed. R. Civ. P. 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,
burden of showing that no claim has been stated. Hedges
v. United States, 404
F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion
, a court must
take the allegations of the complaint as true and draw reasonable
the light most favorable to the plaintiff. Phillips v. County of Allegh
F.3d 224, 231 (3d Cir. 2008) (traditional “reasonable inferences”
undermined by Twombly, see infra).
Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (prosecutorial immun
Reardon v. New Jersey, 2014 WL 2921030, at *2 (D.N.J. 2014) (Hilim
an, J.) (other
absolute immunity grounds, including judicial immunity)(citing Melo
v. Hafer; 13 F.3d
736, 744 (3d Cir. 1994)); Abulkhair z.’. Liberty Mut. Ins. Co., 441 F. Appx
927, 929 n.1
(3d Cir. 2011) (“We note that, in Boyle v. Governor’s Veterans Outrea
ch & Assistance
Ctr., 925 F.2d 71 (3d Cir. 1991), we held that the section 1983 require
ment of state
action is not jurisdictional. See id. at 74. Rather, it is integral to the
merits of the
claim and dismissal is only appropriate under Rule 12(b)(6) for failure
to state a claim
upon which relief may be granted. See id.
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
conclusions, and a formulaic recitation of the elements of a cause of action
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right
relief above a speculative level, so that a claim is “plausible on its face.”
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standa
is not akin to a ‘probability requirement’.
it asks for more than a sheer
possibility.” Iqbal, 556 U.S. at 678.
When the plaintiff is proceeding pro
the complaint is “to be liberally
construed.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). “[H]owever inartfu
pleaded, [it] must be held to less stringent standards than formal pleadin
drafted by lawyers.” Haines v. Kemer, 404 U.S. 519, 520—2 1 (1972).
Nevertheless, “[w]hile a litigant’s pro se status requires a court to constru
allegations in the complaint liberally, a litigant is not absolved from compl
with Twombly and the federal pleading requirements merely because s/he
proceeds pro Se.” Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir. 2010)
The Complaint does not cite any federal statute or state any basis for
federal jurisdiction. I will make the favorable assumption that the plainti
seeks relief under 42 U.S.C. § 1983 for a deprivation of his constitutional
rights. (Plaintiff indicates in his motion papers that this was his intent.
No. 15, at 2)) They must be dismissed, however, both
on jurisdictional grounds
and for failure to state a viable claim.
The claims in Wykowski’s complaint are ill-define
d. Certain of them,
however, seem to be directed at reversing the state
court’s judgment. The
complaint states, for example, that Wykowski is
“here appealing my [state] case
on the basis below.” To the extent Wykowski is mak
ing such a quasi-appellate
argument, it faces an insurmountable jurisdictional
Under the Rooker-Feldman doctrine, lower federal cour
entertain federal claims that were previously adjudicat
ed in state court or are
inextricably intertwined with a state court decision.
See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 (198
3); Rooker v. Fidelity Trust
Co., 263 U.S. 413, 416 (1923); Guarino v. Larsen,
11 F.3d 1151, 1156—57 (3d
Cir. 1993); Port Auth. Police Benev. Ass’n v. Port Auth
., 973 F.2d 169, 178 (3d
Cir. 1992). A federal claim is inextricably intertwin
ed with a prior state court
decision if “granting the relief requested in the fede
ral action requires
determining that the state court’s decision is wron
g or would void the state
court’s ruling.” FOCUS v. Allegheny County Cou
rt of Common Pleas., 75 F.3d
834, 839-40 (3d Cir. 1996). Rooker-Feldman thus
operates to prevent a
disgruntled party in state court litigation from colla
terally attacking the results
of that litigation in federal court under the guise of
an alleged constitutional
error. See Exxon Mobil Corp. v. Saudi Basic Indu
s., Inc., 544 U.S. 280, 284
(2005) (noting that Rooker-Feidman bars “cases brou
ght by state-court losers
complaining of injuries caused by state-court judg
ments rendered before the
district court proceedings commenced and inviting
district court review and
rejection of those judgments”).
Wykowski attempts to do precisely what Rooker-F
eidman forbids. In his
complaint, he states: “I have no resources to pay for
a lawyer to reappeal myh
so I am here appealing my case on the basis belo
w.” (Dkt. No. 1) He
seeks, in effect, to have this Court reverse Judg
e Sogluizzo’s judgment and
orders. Rooker-Feidman squarely prohibits such
a move. See Valenti v. Mitchel,
962 F.2d 288, 297 (3d Cir. 1992) (stating that injun
ctive relief that would
effectively reverse a state a court decision is barre
d by Rooker-Feldman).
For this reason, certain of the claims asserted in
must be dismissed on threshold Rooker-Feldman
B. Judicial Immunity and the State Action Req
I will, however, make the plaintiff-friendly assu
mption that certain of
these Section 1983 claims are not barred by Roo
ker-Feldman. Even so, they
must be dismissed as against Judge Sogluizzo beca
use she is absolutely
immune from suit for official acts taken in her
judicial capacity. And they must
be dismissed as against Berse because she is not
a state actor.
As a state court judge acting in her official capa
city, Judge Sogluizzo
enjoys absolute immunity for “judicial acts.” Stum
p v. Sparkman, 435 U.S. 349,
360 (1978). A judicial act is a function normally
performed by a judge, in a
context where the parties naturally expected to
be dealing with the judge in his
or her judicial capacity. Id. at 362. Here, that test
is obviously met; all of the
judicial acts complained of were rulings for or
against parties in a pending
case. The judge is not deprived of immunity beca
use a ruling is erroneous, or
even in excess of the judge’s authority. Id.; see also
Mireles v. Waco, 502 U.S. 9,
12 (1991). There is no doubt that Judge Sogluizzo
acted in her official capacity,
performing “judicial acts.” Wykowski’s claims
against Judge Sogliuzzo are
dismissed on grounds of judicial immunity.
Alternative grounds for dismissal might be sovereign
immunity or the judge’s
lack of status as a “person” under Section 1983. See also
Regents of the Univ. of
Ca1fomia v. Doe, 519 U.S. 425, 429 (1997); Will v. Mich
igan Dep’t of State Police, 491
U.s. 58, 71(1989) (“neither a State nor its officials
acting in their official capacities are
‘persons’ under § 1983”); Antonelli v. New Jersey,
310 F’. Supp. 2d 700, 712 (D.N.J.
2004) (noting that “[s]overeign immunity is routinely exten
ded to... state officials acting
The Section 1983 claims must also be dismissed
against the attorney,
Berse, because she is not a state actor. Under
Section 1983, a plaintiff must
show that when the defendant denied him a fede
rally protected constitutional
or statutory right, she acted under the color of
state law. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 930 (1982);
Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F’.3d 1250, 1264 (3d Cir.
1994). A private attorney such
as Berse does not act under color of state law.
See Angelico v. Lehigh Valley
Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999)
(“Attorneys performing their
traditional functions will not be considered
state actors solely on the basis of
their position as officers of the court.”) Acco
rdingly, Wykowski’s Section 1983
claims are dismissed against Berse.
For the foregoing reasons, the defendants’ moti
ons to dismiss the
Complaint pursuant to Federal Rules of Civi
l Procedure 12(b)(1) and
12(b)(6) are GRANTED.
An appropriate order will issue.
KEVIN MCNULTY, U.S.D.J.
in their official capacities where it is shown that
the state is the real, substantial party
in interest”), aff’d 419 F.3d 267 (3d Cir. 2005
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