KAPLAN v. MORANO
OPINION. Signed by Judge Claire C. Cecchi on 2/2/17. (DD, ) N/M
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD P. KAPLAN,
Civil Action No. 15-1924 (CCC)
JAMES R. MORANO,
CECCHI, District Judge:
Pro se Plaintiff Richard P. Kaplan (“Plaintiff’), a convicted prisoner confined at the
federal Correctional Institution in Otisville, New York, files the instant Complaint pursuant to 42
§ 1983, alleging that his constitutional rights were violated by a single defendant, James R.
Morano (“Morano”). Because Plaintiff is proceeding under informapauperis status, at this time,
the Court must review the Complaint to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
§ 1915(e)(2) (in
forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C.
§ 1997e (prisoner actions brought with respect to prison
conditions). For the reasons stated below, the Court dismisses the Complaint.
At the outset, the Court notes that the Complaint is sparse and contains very little factual
allegations; indeed, Plaintiffs “Statement of Facts” is a one-page recitation of Plaintiffs claims,
comprised mostly of bare conclusory statements. (See ECF No. 1 at 2.) As such, the Court
provides a very minimal background for the purposes of this Opinion.
Sometime in 2006, Plaintiff pled guilty to unspecified federal crimes. (ECF No. 1-1 at 4.)
While in jail, Plaintiffs then-wife, Margherita A. Pitale, appears to have sought a divorce from
Plaintiff. See id. at 19; (ECF No. 1 at 1.) Plaintiff alleges in the Complaint that Morano, Ms.
Pitale’s son, conspired with the government and Ms. Pitale to unlawfully “set him up.” (ECF No.
1 at 1.) Plaintiff further alleges that Morano was responsible for Plaintiff losing his marital assets
during the divorce proceedings. Id. Plaintiff also alleges that Morano concealed documents which
show that Morano assisted Ms. Pitale in illegally using campaign funds. Id. Finally, Plaintiff
alleges that Morano concealed illegal activities of New Jersey Governor Christopher Christie,
James Cahill, and other government officials. Id. at 2. Plaintiff purportedly has attached exhibits
showing that Morano “has fraudulent (sic) concealed evidence that has contributed to my false
imprisonment.” Id. at 2. However, the attached exhibits comprise of nothing more than proofs of
service of certain lawsuits Plaintiff has filed against Ms. Pitale; .a letter from Plaintiff’s attorney to
Plaintiff regarding his guilty plea; a memorandum concerning the law on fraudulent concealment;
and various letters between Plaintiff and Ms. Pitale, and friends/family of Ms. Pitale, including
one letter that may have been written by Morano to Plaintiff, asking Plaintiff to stop all contact
with Ms. Pitale. (See ECF No. 1-1 at 15.)
STANDARD OF REVIEW
Every complaint must comply with the pleading requirements of the Federal Rules of Civil
Procedure. Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the.
claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint
does not need detailed factual allegations, a plaintiffs
obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do
Factual allegations must be enough to raise a right to
relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
That is, a complaint must assert “enough facts to state a claim to relief that is plausible on
its face.” Id. at 570. “A claim has facial plausibility 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). The
determination of whether the factual allegations plausibly give rise to an entitlement to relief is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted). Thus, a
court is “not bound to accept as true a legal conclusion couched as a factual allegation,” and
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbat, 556 U.S. at 678 (citations omitted).
In determining the sufficiency of a pro se complaint, the Court must be mindful to accept
its factual allegations as true, see James v. City of Wilkes—Barre, 700 F.3d 675, 679 (3d Cir. 2012),
and to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519, 520—21
(1972); US. v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
In general, where a complaint subject to statutory screening can be remedied by
amendment, a district court should not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002) (noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment”).
A plaintiff can pursue a cause of action under 42 U.S.C.
§ 1983 for certain violations of his
constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory. subjects, or causes to be subjected, any citizen
ofthe 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.
Thus, to state a claim for relief under
§ 1983, a plaintiff must establish, first, the violation
of a right secured by the Constitution or laws of the United States and, second, that the alleged
deprivation was committed or caused by a person acting under color of state law. Am. lifts. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balasid, 719 F.3d 160, 166-7 (3d Cir.
Here, Plaintiff names a single defendant, Morano, in the Complaint. However, nowhere in
the Complaint does Plaintiff explain how Morano, under the color of state law, violated Plaintiffs
constitutional rights. Plaintiff does not allege that Morano is either a state official, or that he
conspired with a state official to deprive Plaintiff of his constitutional rights. Moreover, even
assuming that Morano was a state actor for the purposes of Plaintiffs
§ 1983 claims, Plaintiff has
failed to state a claim upon which relief may be granted. In fact, the Court finds that Plaintiff’s
claims are frivolous and utterly without merit.
A. Malicious Prosecution
Plaintiff asserts that Morano, under the color of law, “set him up” and wrongfully convicted
Plaintiff of a crime. The Court construes the claim as alleging malicious prosecution. To state a
claim for malicious prosecution brought under § 1923, a plaintiff must satisfy each of the following
elements: “(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in
plaintiffs favor; (3) the proceeding was initiated without probable cause; (4) the defendant acted
maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” Kossler v. Crisanti, 564 f.3d 181. 126 (3d Cir. 2009) (en banc) (internal quotation
Here, Plaintiff has failed to plead sufficient factual allegations to show that the criminal
proceeding ended in Plaintiffs favor. “[T] o determine whether a party has received a favorable
termination in the underlying case, the court considers the judgment as a whole in the prior action;
the termination must reflect the merits of the action and the plaintiffs innocence of the
misconduct alleged in the lawsuit.” Id. at 188. Plaintiff does not specify what criminal proceeding
the Complaint is referring to, and there are no factual allegations that can lead the Court to
reasonably infer that any such proceeding ended in his favor. As such, the Court finds that Plaintiff
has failed to state a valid malicious prosecution claim under
B. Marital Assets
Next, Plaintiff asserts that Morano, under the color of law, intentionally deprived Plaintiff
of his marital assets in Plaintiffs divorce proceedings. However, Plaintiff has failed to allege any
facts that show how anyone, state actor or otherwise, could have done so under the color of law.
In fact, to allege that Morano somehow could have unduly influenced the outcome of a legal
proceeding under the color of law would require much more than the bare conclusory statements
that Plaintiff alleged in his Complaint. See Collura v. City oJPhila., 590 F. App’x 180, 185 (3d
Cir. 2014) (“[F]or a private party to be liable for [state] action it must, (1) have a ‘pre-arranged
plan’ with [state actors], and (2) [state actors] must substitute private party’s judgment for their
own”) (citing Cruz v. Donnelly, 727 F.2d 79, 81-82 (3d Cir. 1984)). Therefore, the Court finds
that Plaintiff has failed to state a claim on this issue.
C. General Grievances
Next, Plaintiff asserts that Morano illegally used campaign contributions, accepted bribes
from state officials, and intentionally concealed illegal activities of various state officials.
However, Plaintiff lacks standing to assert those claims. “To have standing, a litigant must seek
relief for an injury that affects him in a ‘personal and individual way.” Hollingsworth v. Perry,
133 S.Ct. 2652, 2662 (2013) (citation omitted). Here, even if Plaintiffs allegations are true, he
does not show how those alleged illegal activities directly affected him in a personal way; to
establish standing, Plaintiff must have a “direct stake in the outcome of the case.” Id. At best,
Plaintiffs allegations amount to a claim that Morano’s alleged activities, if true, would harm his
and every citizen’s interest, and that is insufficient to establish standing. See Id. (“[A] ‘generalized
grievance,’ no matter how sincere, is insufficient to confer standing.”). Accordingly, the Court
finds that Plaintiff has failed to state a claim on these issues.
D. State Law Claims
Finally, Plaintiff asserts state law claims under the New Jersey Tort Claims Act. However,
contrary to what Plaintiff argues in the Complaint, this Court does not have jurisdiction under the
New Jersey Tort Claims Act. See Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (“Federal courts
are courts of limited jurisdiction, possessing only that power authorized by Constitution and
[federal] statute.”) (internal quotations and citation omitted).
To the extent Plaintiff argues that this Court should exercise supplemental jurisdiction over
Plaintiffs state law claims under 28 U.S.C.
§ 1367, § 1367 permits the district court, within its
discretion, to decline to exercise supplemental jurisdiction over a claim if “the district court has
dismissed all claims over which it has original jurisdiction.” 22 U.S.C. 1367(c)(3). Indeed, the
Third Circuit has used even stronger language to describe the court’s obligations under the
provision. “The power of the court to exercise pendent jurisdiction, though largely unrestricted,
requires, at a minimum, a federal claim of sufficient substance to confer subject matter jurisdiction
on the court.” City ofPittsburgh Comm ‘n on Human Relations v. Key Bank USA, 163 F. App’x
163, 166 (3d Cir. 2006) (quoting Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195 (3d Cir.
1976)). “[I]f it appears that all federal claims are subject to dismissal, the court should not exercise
jurisdiction over remaining claims unless ‘extraordinary circumstances’ exist.” Id.
claim over which the district court has original jurisdiction is dismissed before trial, the district
court must decline to decide the pendent state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative justification for doing so.” Id.
(quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)).
In light of the fact that this case is still before trial, that the Court has dismissed all of
Plaintiffs federal claims, and that no extraordinary circumstances exist to compel the Court to
exercise jurisdiction, the Court declines to exercise supplemental jurisdiction over Plaintiffs state
law claims. Therefore, the Court dismisses these claims without prejudice. Having dismissed all
claims, the Court dismisses the Complaint.
For the reasons set forth above, the Complaint is DISMISSED WITHOUT PREJUDICE.
In the interest ofjustice, Plaintiff is afforded 30 days from the entry of the accompanying Order to
amend the Complaint.
Claire C. Cecchi, U.S.D.J.
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