NICHOLS v. STATE OF NEW JERSEY et al

Filing 8

OPINION. Signed by Judge William J. Martini on 7/23/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:14-03821 (WJM)

PAUL NICHOLS,
Plaintiff,

OPINION
v.
THE STATE OF NEW JERSEY,
MICHELLE M. SMITH (in her official
capacity as Clerk Superior Court of New
Jersey), SALLYANNE FLORIA (in her
official capacity as Presiding Judge Chancery
Div., Family Part, Essex County),
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Paul Nichols, a reporter for the Bergen Dispatch, seeks a preliminary
injunction pursuant to Federal Rule of Civil Procedure 65 enjoining and declaring
unconstitutional a gag order issued by the Honorable Nancy Sivilli, J.S.C., of the Essex
County Superior Court, Chancery Division, Family Part. Defendants the State of New
Jersey, Michelle M. Smith (in her official capacity as Clerk of the Superior Court of New
Jersey), and Sallyanne Floria (in her official capacity as Presiding Judge of the Chancery
Division, Family Part, Essex County) move to dismiss the Complaint for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). There was no oral
argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, Nichols’s motion is
DENIED, and Defendants’ motion is GRANTED.
This case arises out of a custody dispute heard by Judge Nancy Sivilli in the Essex
County Superior Court, Chancery Division, Family Part on February 24, 2011. The
Plaintiff in that custody dispute, Alina Myronova, alleged that her husband, Surrender
Malhan, was an unfit parent who could not take care of his children. Compl. ¶ 7, ECF No.
1. Judge Sivilli ultimately sided with Myronova and awarded her full custody. Id. ¶ 12.
Some three years later, on February 5, 2014, Malhan and five other plaintiffs filed
a putative federal class action, Edeglass v. New Jersey, No. 3:14-cv-00760, challenging the
way in which New Jersey family courts award custody. Id. ¶ 15. Not long after Edeglass
was filed, Malhan spoke with a reporter about his experience in family court. Id. ¶ 16.
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Less than two months after Malhan spoke with the reporter, Judge Sivilli issued an order
dated April 4, 2014, as well as Amended Order dated May 1, 2014, “enjoin[ing] and
restrain[ing]” Malhan and Myronova from “speaking with, appearing for an interview, or
otherwise discussing the within litigation with any reporters . . . on the grounds that it is
not in the best interest of the children to have the parties’ divorce litigation discussed in a
public forum.” ECF No. 3-2. The Court refers to Judge Sivilli’s order as the “Gag Order.”
On May 6, 2014, Malhan filed an application in Edeglass seeking to enjoin
enforcement of the Gag Order. The Honorable Freda Wolfson denied Malhan’s application
pursuant to the Rooker-Feldman doctrine. Order, Edeglass, No. 14-760 (D.N.J. May 8,
2014), ECF No. 11.
Hoping to succeed where Malhan failed, journalist Paul Nichols filed the instant
case on June 13, 2014. In his one-count Complaint, brought pursuant to 42 U.S.C. § 1983
(“Section 1983”), Nichols alleges that the Gag Order violates his rights under the First and
Fourteenth Amendments, as well as the Commerce Clause, to speak with Malhan about
Malhan’s case. Compl. ¶ 26. Nichols seeks an injunction prohibiting enforcement of the
Gag Order, as well as a declaration that the Gag Order is unconstitutional. Nichols is not
looking for money damages. Id.; see also Reply Br. at 7, ECF No. 7 (“Nichols seeks only
declaratory and injunctive relief.”). Notably, Nichols’s Complaint names as Defendants
the State of New Jersey, Smith, and Judge Floria, but not the person who actually issued
the Gag Order, Judge Sivilli.
On June 18, 2014, Nichols filed a “motion for temporary restraining order and
preliminary injunction.” ECF No. 3. As Nichols’s papers were filed on the docket as a
motion, the Clerk of the Court treated the filing as a motion for a preliminary injunction,
and neither party objected. On July 7, 2014, Defendants filed an opposition brief arguing
(a) that the Court lacked subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), and (b) that Nichols failed to state a claim upon which relief could be granted
under Federal Rule of Civil Procedure 12(b)(6). ECF No. 6. On July 11, 2014, Nichols
filed a reply brief. ECF No. 7.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998). 1
Nichols’s Complaint contains a single count brought pursuant to Section 1983.
Section 1983 provides:

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Because the Court resolves the motion under Rule 12(b)(6), the Court does not address the
standard for Rule 12(b)(1).
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Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or declaratory relief
was unavailable.
Defendants persuasively argue that Nichols has failed to state a claim under Section 1983.
To begin, Defendants argue that Nichols has failed to state a Section 1983 claim
against the State of New Jersey because the State of New Jersey is not a “person” for
purposes of Section 1983. Defendants are correct. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989).
Next, the Court turns to the Section 1983 claim against Smith and Judge Floria.
Since Nichols is seeking injunctive and declaratory relief against both Defendants in their
official capacity, the Defendants are considered “persons” for purposes of Section 1983.
Will, 491 U.S. at 71 n.10; Doe v. Wigginton, 21 F.3d 733, 738 (6th Cir. 1994). Defendants
argue that Nichols has failed to state a Section 1983 claim against Smith and Judge Floria
in their official capacities because neither Defendant had anything to do with the Gag
Order. In support of this argument, Defendants appeal to Rode v. Dellarciprete, 845 F.2d
1195 (3d Cir. 1988), a case that does not address official capacity liability. Rode held that
individual liability attaches under Section 1983 based on “personal involvement in the
alleged wrongs.” Id. at 1207. Under Rode, “[p]ersonal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.” Id. Nichols
argues that Rode does not apply because Nichols’s claims against Smith and Judge Floria
are based on New Jersey’s “official policy.” However, Nichols fails to explain how such
an official policy gives rise to liability on the part of either Defendant.
If Rode applies here, Nichols has failed to state a claim against Smith and Judge
Floria because Nichols has failed to allege that either Defendant directed the Gag Order or
even knew about it. But Rode likely does not apply since this is an official capacity suit.
In official capacity suits brought under Section 1983, “[c]laims for prospective injunctive
relief are permissible provided the official against whom the relief is sought has ‘a direct
connection to, or responsibility for, the alleged illegal action.’” Hussmann v. Knauer, No.
4-2776, 2005 WL 435231, at *6 (E.D. Pa. Feb. 23, 2005) (quoting Davidson v. Scully, 148
F. Supp. 2d 249, 254 (S.D.N.Y. 2001)); see also Davidson, 148 F. Supp. 2d. at 254
(applying same rule where plaintiff seeks declaratory relief). There is no suggestion in the
Complaint that either Smith or Judge Floria had a direct connection to or responsibility for
the Gag Order issued by Judge Sivilli. Accordingly, the Court will DISMISS the
Complaint against Smith and Judge Floria WITH PREJUDICE. Since the Court is

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dismissing the Complaint against all Defendants, it will DENY as moot Nichols’s motion
for a preliminary injunction.
Finally, Nichols argues that if he fails to state a claim against Defendants, he should
be allowed to file an Amended Complaint naming a “proper party” as a Defendant. While
Nichols is perhaps referring to Judge Sivilli, he does not explicitly address who this “proper
party” would be. Without deciding whether a suit against Judge Sivilli or any other
potential defendant would be successful, the Court recognizes that it is at least conceivable
that Nichols could prevail on his Section 1983 claim against a proper defendant. See
FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996) (holding
that neither the Rooker-Feldman doctrine nor the Younger doctrine barred citizen’s
advocacy group from seeking to challenge a family court gag order). Accordingly, the
Court will grant Nichols leave to file an Amended Complaint within 30 days. See Alston
v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (“[E]ven when a plaintiff does not seek leave
to amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a
curative amendment, unless an amendment would be inequitable or futile.”). An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: July 23, 2014

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