GAGE v. NEW JERSEY OFFICE OF THE ATTORNEY GENERAL et al
OPINION fld. Signed by Judge Jose L. Linares on 10/17/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS I. GAGE,
CIVIL ACTION NO. 16-2790 (JLL)
NEW JERSEY OFFICE OF THE
ATTORNEY GENERAL, et al.,
LINARES, District Judge
The plaintiff, Thomas I. Gage, is a frequent litigant in the United States District
Court for the District of New Jersey and in other courts. See, e.g., Gage v. Provenzano,
No. 14-5700, 2016 WL 5329596, at *1 (D.N.J. Sept. 21, 2016) (listing several cases
instituted by the plaintiff).
The plaintiff asserts claims in this current action against the following New Jersey
state government offices and officials (hereinafter, “State Defendants”): (1) the New
Jersey Office of the Attorney General; (2) Steve C. Lee, the Director of the New Jersey
Division of Consumer Affairs (hereinafter, “NJDCA”); (3) Cindy Miller, the NJDCA
Deputy Director; (4) Jeffrey Koziar, a Deputy Attorney General representing the NJDCA;
and (5) NJDCA investigators Joseph lasso and Brittany Kieran. (See dkt. 1 at 1—9.)’ He
The Court will refer to documents by the docket entry numbers and the page numbers
imposed by the Electronic Case Filing System.
also asserts claims in this action against the defendant Wayne Oborne, who is a private
The State Defendants now move pursuant to Federal Rule of Civil Procedure
(hereinafter, “Rule”) 12(b)(1) and Rule 12(b)(6) to dismiss the claims asserted against
them. (See dkt. 23; dkt. 23-1; dkt. 23-2; dkt. 23-3.) The motion is unopposed. The
Court will resolve the motion upon a review of the papers and without oral argument.
See L.Civ.R. 78.1(b). For the following reasons, the Court will: (1) grant the motion; (2)
dismiss the claims asserted against the State Defendants; and (3) sua sponte dismiss the
remaining claims asserted against Obome.
As far as the Court can discern the allegations in the complaint, the plaintiff
alleges that he is a home improvement contractor, that he performed a kitchen
improvement project for Obome, and that Obome filed a false complaint against him
with the NJDCA to avoid paying for the project. (Scc dkt. 1 at 24—25 (Obome’s
complaint filed with the NJDCA, which was annexed to the plaintifrs pleadings).) He
alleges that Kieran and lasso investigated Obome’s complaint in July 2015, and that
Koziar oversaw the investigation. On February 18, 2016, the NJDCA issued an order
(hereinafter, “NJDCA Order”) assessing the plaintiff with: (1) a civil penalty in the
amount of $3,250; and (2) a restitution penalty to be paid to Oborne in the amount of
The NJDCA Order, which is annexed by the plaintiff to the complaint, reveals that
the NJDCA notified the plaintiff of Obome’s complaint, that the NJDCA gave the
plaintiff an opportunity to appear at a hearing to defend hirnself, and that the plaintiff
specifically chose not to appear for a hearing. Furthermore, the NJDCA Order reveals
that the plaintiff was found to have violated New Jersey law by failing to: (1) perform the
project in accordance with the specifications in the contract with Obome; (2) register as a
home improvement contractor; (3) provide a certificate of insurance to Obome for the
project; (4) list in the contract the dates when work was to be performed; and (5) comply
with other general consumer-notification requirements in the contract. (See dkt. 1 at 33—
36; see also dkt. 1 at 26—29 (Notice of Violation sent by the NJDCA to the plaintiff, and
annexed by the plaintiff to the complaint).) The plaintiff construes the NJDCA Order as
illustrating that the State Defendants “found that [he] basically failed to provide [Obome]
with a well-written, technically perfect home improvement contract, as lawyers do.”
(Dkt. 1 at 9 (correcting the plaintiffs original grammar and spelling).)
The plaintiff alleges that, as a result of the aforementioned conduct, he is entitled
to relief pursuant to 42 U.S.C.
1983 because the State Defendants and Oborne have
violated his constitutional rights. He also asserts that all of the defendants should be
investigated and prosecuted for violating various federal and state criminal statutes.
It is not necessary for the Court to restate the standard for resolving a motion made
pursuant to Rule 12(b)(l), as that standard has been already enunciated. See Davis v.
Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (setting forth standard; citing Mortensen
v. First Fed. Say. & Loan Ass’n, 549 F.2d 884 (3d Cir. 1977), Petruska v. Gannon Univ.,
462 F.3d 294 (3d Cir. 2006), and Constitution Party of Pa. v. Aichele, 757 F.3d 347 (3d
It is also not necessary for the Court to restate the standard for resolving a motion
made pursuant to Rule 12(b)(6). See Mariotti v. Mariotti Bldg. Prods., Inc., 714 F.3d
761, 764—65 (3d Cir. 2013) (setting forth standard; citing Bell At!. Corp. v. Twombly,
550 U.S. 544 (2007)); Fowler v. UPMC Shadyside, 578 F.3d 203, 209—12 (3d Cir. 2009)
(setting forth standard; citing Twombly and Ashcroft v. Igbal, 556 U.S. 662 (2009)).
Unopposed Motions To Dismiss
The plaintiff has not opposed the motion at bar. However, the Court must still
address a motion to dismiss on the merits even if it is unopposed. See Jones v.
Unemployment Comp. Bd. of Review, 381 Fed.Appx. 187, 189 (3d Cir. 2010);
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).
Liberal Construction Of Pro Se Pleadings
The Court, in addressing the instant motion: (1) construed the plaintiffs claims
liberally; and (2) accepted all of the pro se plaintiffs factual allegations as true, construed
the claims in the light most favorable to the plaintiff, and considered whether the plaintiff
may be entitled to relief in federal court under any reasonable reading of those claims.
See Kissell v. Dep’t of Corrs., 634 Fed.Appx. 876, 878—79 (3d Cir. 2015) (citing Igbal,
Twombly, Erickson v. Pardus, 551 U.S. 89 (2007), and Phillips v. County of Allegheny,
515 F.3d 224 (3d Cir. 200$)).
The Court is guided by all of the standards discussed above in resolving the instant
Section 1983 Claims
Section 1983 enables a plaintiff to bring a civil action only against a “person” who
causes a deprivation of constitutional rights under color of state law. However, the State
Defendants are not considered to be “persons” subject to such an action.
N.J. Dep’t of Envtl. Prot., 205 Fed.Appx. 71, 79 (3d Cir. 2006); see also Cook v. Superior
Court of N.J., No. 10-409, 2010 WL 2836409, at *1 (D.N.J. July 14, 2010) (dismissing a
Section 1983 claim asserted against the New Jersey Department of Law and Public
Safety based on irniriunity). The Eleventh Amendment also bars Section 1923 claims
from being brought against state agencies and state officials such as the State Defendants,
because those kinds of claims are, in effect, brought against the state itself See Hanani,
205 Fed.Appx. at 79. The State of New Jersey has not consented to subject its agencies
and its officials to Section 1983 claims, and the inMilunity afforded to New Jersey state
agencies and officials against Section 1983 claims has not been abrogated. Therefore, the
Court will grant the part of the motion seeking to dismiss the Section 1983 claims
asserted against the State Defendants.2
The plaintiff does not assert Section 1983 claims against Lee, Miller, Koziar,
lasso, and Kieran in their individual capacities; he specifically names them in the
The Court notes that it is appropriate to grant dismissal of the Section 1983 claims
based on the immunity afforded to state governmental agencies and officials under either Rule
12(b)(l) or Rule l2(b)(6). See Atkin v. Johnson, 432 Fed.Appx. 47, 48 (3d Cir. 2011).
complaint in their official capacities only. (See dkt. 1 at 1; id. at 4—5.) However, even if
the plaintiff had brought the Section 1983 claims against those defendants in their
individual capacities, the claims would be barred by qualified iirimunity. The plaintiff
cannot reasonably allege that constitutional violations occurred when: (1) Obome’s
complaint about a home improvement contractor was investigated by the state agency
charged with conducting that kind of investigation, i.e., the NJDCA; (2) the plaintiff was
notified about the complaint by the NJDCA, and was given an opportunity to respond to
the complaint, which the plaintiff spumed; and (3) the plaintiff was penalized for
violations of New Jersey law. See Rizzo v. Connell, No. 10-4136, 2012 WL 32206, at
*11 (D.N.J. Jan. 5, 2012) (dismissing a Section 1983 claim asserted against New Jersey
enviromnental officials in their individual capacities, because plaintiff had not shown any
facts demonstrating that those officials had committed constitutional violations in
enforcing New Jersey environmental regulations), affd, 517 Fed.Appx. 111, 112—13 (3d
Cir. 2013) (affirming the district court’s decision concerning qualified immunity based
upon the district court’s reasoning).
The Court notes that the proper avenue for the plaintiff is to seek relief from the
NJDCA Order in the New Jersey state appellate courts, and not in a federal court. See
N.J.Ct.R. 2:2-3(a)(2) (setting forth the procedure for seeking review of a state agency’s
decision); W.K. v. N.J. Div. of Developmental Disabilities, 974 F.Supp. 791, 794 (D.N.J.
1997) (stating that the process enveloping a final decision of a New Jersey state agency
and the availability of appellate review from that decision “is treated as a unitary
system”). The New Jersey appellate courts can provide a comprehensive review of the
NJDCA Order that will not be tantamount to a mere pro forma approval.
Miller, No. A-5262-09T4, 2011 WL 558779, at *1_3 (N.J. App. Div. Feb. 18, 2011)
(reviewing a decision by the NJDCA to not renew a home improvement contractor’s
Gage’s demands for criminal investigations and prosecutions of the State
Defendants are also barred. Gage is a private citizen with no federal right to compel a
criminal investigation or a criminal prosecution, because initiating an investigation or a
prosecution is a function of governmental discretion. $çç Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973); see also Fuchs v. Mercer County, 260 Fed.Appx. 472, 475 (3d Cir.
2008) (affinning a district court’s judgment that dismissed a claim asserted against a
district attorney, wherein plaintiff sought to compel a criminal investigation and
prosecution of a police officer). Furthermore, Gage has not demonstrated that any of the
claims concerning criminal statutes that were allegedly violated by the State Defendants
“provide for a private right of enforcement.” Walsh v. Krantz, 386 Fed.Appx. 334, 336
(3d Cir. 2010). Therefore, the part of the motion by the State Defendants concerning
dismissal of these claims will be dismissed.
Claims Against Oborne
The gravarnen of the plaintiffs Section 1983 claim against Oborne is a dispute
between the plaintiff and a private citizen, and thus that claim raises no proper federal
cause of action and has no call upon a federal forum. The plaintiff cannot maintain a
claim under Section 1983 that essentially seeks relief based on the private conduct of a
private actor, i.e., Oborne, no matter how allegedly wrongful.
Dophin v. Bank of
Am. Mortg. Co., 641 Fed.Appx. 131, 133 (3d Cir. 2016); St. Croix v. Etenad, 183
Fed.Appx. 230, 23 1 (3d Cir. 2006). Furthenriore, for the reasons discussed in Part III,
supra, Gage has no federal right to compel a criminal investigation or a criminal
prosecution of Obome. Therefore, the Court will sua sponte dismiss the claims asserted
The Court notes that it is authorized to dispose of the claims asserted against
Oborne sua sponte at this juncture. See Coulter v. Unknown Probation Officer, 562
Fed.Appx. 87, 89 n.2 (3d Cir. 2014) (stating that a district court, when addressing a
motion to dismiss by some of the defendants in an action, may sua sponte dismiss a claim
asserted against a non-moving defendant where it is clear that the plaintiff failed to state a
claim for relief); see also Lincoln v. Magnum Land Servs., LLC, 560 Fed.Appx. 144, 147
n.2 (3d Cir. 2014) (affinning a district court’s decision to grant a motion to dismiss by the
moving defendants and to sua sponte dismiss a claim asserted against a non-moving
For the aforementioned reasons, the Court will: (1) grant the motion by the State
Defendants to dismiss the claims asserted against them; (2) dismiss the claims asserted
against the State Defendants; and (3) dismiss the claims asserted against Obome.
The Court will enter an appropriate order and judgment.
JE L. LINARES
fnited States District Judge
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