ABULKHAIR v. THE OFFICE OF ATTORNEY ETHICS et al

Filing 58

OPINION. Signed by Judge Kevin McNulty on 03/15/2018. (ek)

NOT FOR PUBLICATION
UNITED SPATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ASSEM A. ABULKHMR,

Civ. No. 2: 16-cv-3767-KM-JBC

Plaintiff,

OPINION

vs.
THE OFFICE OF ATTORNEY
ETHICS, THE STATE OF NEW
JERSEY, CHARLES CENTINARO,
STEVEN P. ROSS, PAULA T.
GRANUZZO,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the court on the motion (ECF No. 36) of
defendants to dismiss the complaint of plaintiff, Assem A. Abfflkhair, pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Also before the court is
plaintiff Abulkhair’s cross-motion for default judgment and to strike
defendants’ answer. (ECF No. 40). For the reasons set forth below, the
defendants’ motion to dismiss the amended complaint is granted; Mr.
Abulkhair’s cross-motion is denied.

1

I.

BACKGROUND’
A. Factual History
Plaintiff Assem A. Abulkhair is a resident of New Jersey, and a frequent

litigant in this Court.2 (AC

¶

1). The original complaint, now dismissed, brought

claims against the Office of Attorney Ethics (“OAE”), which disciplines attorneys
for professional misconduct and the State of New Jersey. The amended
complaint adds three individuals: Charles Centinaro, the Director of the OAE;
Steven P. Ross, an investigator for the OAE; and Paula T. Granuzzo, also an
investigator for the OAE. (AC

¶1

4-8).

Mr. Abulkhair was represented in state court civil litigation by William T.
Smith, Esq., of the Hook, Smith & Meyer law firm. (AC

¶

16). Smith allegedly

engaged in the “unethical, unprofessional practice and misconduct of
mishandling [Mr. Abulkhair’sJ three (3) personal injury cases.” (AC

¶

16). Mr.

Abulkhair alleges that Smith lost one case on summary judgment, failed to file
for a default judgment when a defendant did not answer a complaint, and had
two cases dismissed for failure to prosecute. (AC

1

16). Mr. Abulkhair claims

that Smith was “ripping him off and extorting the trust deposit and experts’
fees in the amount of $10,753.50” without a written contract, in violation of
Rule 1.5c of the Rules of Professional Misconduct.3 (AC

¶

16).

Plaintiffs allegations are taken as true at the motion to dismiss stage. Citations
to the amended complaint (ECF No. 21) are abbreviated as “AC.”
A search of the docket for “Assem A. Abulkhthr” yielded 21 separate cases filed
in this District.
2

3

Rule 1.5(c) of the New Jersey Disciplinary Rules of Professional Conduct states:
A fee may be contingent on the outcome of the matter for
which the service is rendered, except in a matter in which a
contingent fee is prohibited by law or by these rules. A
contingent fee agreement shall be in writing and shall state
the method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal, litigation
and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after
the contingent fee is calculated. Upon conclusion of a
2

Mr. Abulkhair alleges that the OAE mishandled the investigation and
prosecution of grievances he filed against Mr. Smith. He insists that, based on
Mr. Smith’s conduct, the OAE should have drawn from the New Jersey
Layers’ Fund for Client Protection (“the Fund”) to reimburse Mr. Abulkhair for
the $10,753.50 in fees he paid to Smith, plus the damages he believes he
would have received from his three personal injury cases. (AC

9

79-84).

Instead, he says, the OAE struck a deal with Smith and only required him to
take a remedial educational course. (AC

¶f

69-70, 84). Mr. Abulkhair alleges

that this outcome bespeaks discrimination by the State of New Jersey, the
OAE, the Director of the OAE, and the investigating attorneys appointed to the
matter. (AC

¶

83).

Mr. Abulkhair claims that the first person the OAE appointed to
investigate his grievance, Steven Ross, did not properly pursue the matter. (AC

¶f

6, 17-77). Ross allegedly worked across the street from a “corrupt” law firm,

asked questions about his disability’, retaliated against him because of his
“strong language” against judges and the judicial system, and discriminated
against him on the basis of religion, race, and disability. (AC ¶118-35).
Abulkhair alleges that Ross ignored evidence of Smith’s misconduct and “made
up ‘facts.’” (AC

¶J

17, 3 1-34, 59-61).

Mr. Abulkhair formally objected to the OAE’s handling of his grievance
and demanded that the OAE compensate him for the money he paid Smith. (AC

¶J

7 1-72). The OAE then appointed another investigator, Paula T. Granuzzo, to

review Ross’s report. (AC

¶

73). The amended complaint alleges that Granuzzo

also ignored evidence and neglected to take appropriate actions. (AC ¶jJ 73-77).
It also alleges that Charles Centinaro, the Director of the OAE, supervised,
ordered, and commanded the investigation to “get even” with Mr. Abulkhair.
(AC

1

78). Mr. Abulkhair’s OAE matter was dismissed on May 5, 2016. (AC
contingent fee matter, the lawyer shall provide the client
with a written statement stating the outcome of the matter
and, if there is a recovery, showing the remittance to the
client and the method of its determination.
3

¶

85). Mr. Abulkhair claims that he was deprived of his right to reimbursement

from the Fund pursuant to Rule 1:28. (AC

¶

80-82).

On September 11, 2015, Abulkhair “served his tort notice upon
Defendants by mail and fax, which was publish[edl in many overseas
newspapers [in] Arabic and English.” (AC
did not respond. (AC

1

¶

86). He claims that the defendants

88).

B. Brief Procedural History
Mr. Abulkhair filed his initial complaint on June 15, 2016 against the
State of New Jersey and the OAE. (ECF No. 1). He was granted in forma
pauperis status on June 28, 2016. (ECF No. 2). The State and the OAE filed a
motion to dismiss on September 22, 2016. (ECF No. 12). I issued an opinion
and order dismissing the original complaint on May 24, 2017. (ECF Nos. 16 &
17); Abulkhair v. Office of Attorney Ethics, No. 2:16-cv-3767, 2017 WL 2268322
(D.N.J. May 24, 2017). The dismissal was with prejudice as to the Court’s lack
of jurisdiction under Rule 12(b)(l)—i.e., with regard to the State and the OAE’s
sovereign immunity, as to which amendment would be futile. Abulkhair, 2017
WL 2268322, at *13. The dismissal was without prejudice as to the failure to
state a claim under Rule 12(b)(6). Id.
Mr. Abulkhair filed an amended complaint on June 23, 2017 against the
State of New Jersey, the OAE, Charles Centinaro, Steven Ross, and Paula
Granuzzo. (ECF No. 21). Defendants moved to dismiss the amended complaint
on September 21, 2017. (ECF No. 36). On October 2, 2017, Mr. Abulkhair filed
a motion for leave to enter a default and motion to strike based on defendants’
alleged failure to file a timely answer. (ECF No. 40).
C. Causes of Action and Request Sought
Mr. Abulkhair alleges several causes of action in the amended complaint,
which all appear to be against all defendants—i.e., the State of New Jersey, the
OAE, Charles Centinaro, Steven Ross, and Paula Granuzzo. They are as

4

follows :
•
•
•
•
•
•
•
•

Deprivation of his Fourteenth Amendment right to equal protection in
violation of 42 U.S.C. § 1983 (“Section 1983”) (AC ¶r 9734)
Deprivation of his Fourteenth Amendment right to due process in
violation of Section 1983 (AC 99117-34)
Conspiracy to deprive him of equal protection and civil rights under the
Fourteenth Amendment in violation of 42 U.S.C. § 1985 (AC ¶9141-45)
Race-based discrimination in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”) (AC ¶1146-47)
Religious discrimination in violation of the First Amendment and the New
Jersey Law Against Discrimination (“NJLAD”) (AC ¶ 148-50)
First Amendment retaliation (AC ¶1J 135-40)
Disability discrimination in violation of Title II of the Americans with
Disabilities Act (“ADA”) (AC ¶1154 61)
Negligent infliction of emotional distress (AC ¶1162-66).

Mr. Abulkhair asks for damages “not less than his recoupment entitlement
of his own money in the amount of $10,753.50”; an order that defendants
return all of Abulkhair’s “extorted trust/property seized by them through their
dishonest Attorney Smith”; “injunctive relief’ ordering defendants to
compensate Abulkhair for the loss of his three “meritorious” personal-injury
cases; $900,000.00 in compensatory damages for discrimination and
retaliation; an order enjoining/restraining defendants from further acts of
discrimination and retaliation; a permanent injunction prohibiting the
defendants from engaging in unconstitutional action; all costs and expenses
arising from defendants’ actions; interest, costs, and reasonable legal fees; “any

§ 1983 and the ADA; punitive
damages; and other relief as justice requires. (AC ¶f 167-77 & pp. 37-39).
and all other remedies” pursuant to 42 U.S.C.

II.

LEGAL STANDARDS
A. Rule 12(b)(6) Standard
Rule l2(b)(6) provides for the dismissal of a complaint, in whole or in

Several of the counts Mr. Abulkhair sets forth in the amended complaint allege
duplicative or multiple causes of action, which I have attempted to consolidate in a
list.
5

part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9
(3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences are drawn in favor
of the plaintiff. N.J. Carpenters & the Trs. Thereof a Tishman Constr. Corp. of
N.J., 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to
provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland a 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 “Lt]he plausibility standard
is not akin to a ‘probability requirement’

...

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
As the Third Circuit instructed post-Iqbal, “conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss: ‘threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do
not suffice.’ To prevent dismissal, all civil complaints must now set out
‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at
678). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555).

6

A plaintiff alleging a conspiracy must plead more than “vague inferences
and allegations.” Coulter

ii.

Allegheny Cnty. Bar Ass’n, 496 F. App’x 167, 169

(3d Cir. 2012) (citing Twombly, 550 U.S. at 556). “Bare assertions of joint
action or a conspiracy are not sufficient to survive dismissal at the pleading
stage.” Id. Rather, the plaintiff must “demonstrate[j the existence of any
concerted effort” among the defendants. Id.
Mr. Abulkhair is appearing pro se. A pro se complaint is “to be liberally
construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by laers.” Erickson v. Pardus, 551
U.s. 89, 93-94 (2007). Nevertheless, it must meet some minimal standard.
“While a litigant’s pro se status requires a court to construe the allegations in
the complaint liberally, a litigant is not absolved from complying 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) (citation omitted).
B. Rule 12(b)(1) Standard
A motion to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) may be raised at any time. Iwanowa v.
Ford Motor Co., 67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(l)
challenges are either facial or factual attacks. See 2 James Wm. Moore, Moore’s
Federal Practice

§

12.30[4J (3d ed. 2007). The defendant may facially challenge

subject matter jurisdiction by arguing that the complaint, on its face, does not
allege sufficient grounds to establish subject matter jurisdiction. Iwanowa, 67
F. Supp. 2d at 438. Under this standard, a court assumes that the allegations
in the complaint are true, and may dismiss the complaint only if it appears to a
certainty that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Id.
I construe the defendants’ argument that they are immune from suit
based on the Eleventh Amendment to be a facial challenge to the amended
complaint’s jurisdictional basis. Accordingly, as under Rule 12(b)(6), the court
will take the well-pleaded factual allegations of the amended complaint as true.
7

See Gould Elecs., Inc. v. U.s., 220 F.3d 169, 178 (3d Cir. 2000).
III.

MOTION TO DISMISS
A. Earlier Dismissals with Prejudice/Jurisdiction

Mr. Abulkhair’s amended complaint asserts ten counts against the State
of New Jersey and the OAE. Eight of these causes of action were dismissed
with prejudice, as against the State and the OAE, in a previous opinion, on
sovereign immunity grounds. These causes of action include deprivation of his
Fourteenth Amendment right to equal protection in violation of Section 1983;
deprivation of his Fourteenth Amendment right to due process in violation of
Section 1983; conspiracy to deprive him of equal protection under the
Fourteenth Amendment in violation of Section 1983; race-based discrimination
in violation of the NJLAD; religious discrimination in violation of the First
Amendment; religious discrimination in violation of the NJLAD; retaliation in
response to Mr. Abulkhair’s “strong language” against judges in violation of the
First Amendment; intentional infliction of emotional distress; and negligent
infliction of emotional distress. Abulkhair u. Office of Attorney Ethics, No.
2:16-cv-3767, 2017 WL2268322, at *3 5-11, 13 (D.N.J. May 24, 2017).
Once a cause of action has been dismissed “with prejudice,” a plaintiff
cannot file the same cause of action against the same defendant. See Rotante v.
Franklin Lakes Bd. of Educ., No. 13-cv-3380, 2014 WL 6609034, at *4 *6
(D.N.J. Nov. 20, 2014); cf. Batista u. Countrywide Home Loans, Inc., No.
15-cv-4522, 2015 WL 4022080, at *2 (D.N.J. June 29, 2015). When an issue is
actually and necessarily determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits involving the same parties. See
Batista, 2015 WL 4022080, at *2; see also Howard Hess Dental Labs. Inc. v.
Dentsply Int’l Inc., 602 F.3d 237, 247 (3d Cir. 2010).
I entered the earlier dismissal with prejudice because I considered
amendment to be futile. Mr. Abulkhair nevertheless included similar claims in
the amended complaint. Out of caution, I have reviewed the amended
complaint’s claims under 42 U.S.C.

§ 1983 and 1985, as well as the state law
8

claims. Nothing about the restatement of these claims in the amended
complaint remedies the jurisdictional defects of the original complaint. For the
reasons expressed in my earlier Opinion, those claims are again dismissed as
against the State of New Jersey and the OAE, with prejudice. See Abulkhair,
2017 WL 2268322, at *5*11
What remain, then, after these initial jurisdictional dismissals, are the
following: against all defendants, claims under Title VII and ADA; against
Centinaro, Ross, and Qranuzzo only, claims of violation of due process, equal
protection, conspiracy to deprive civil rights, First Amendment, the NJLAD
religious discrimination, First Amendment retaliation, and negligent infliction
of emotional distress.
B. Prospective Injunctive Relief
Mr. Abulkhair’s demands for relief include prospective injunctive relief.
He does not, however, allege factually any ongoing violation of federal law.
Rather, he claims that he was denied reimbursement from the Fund and that
the sanctions imposed on his former attorney, Smith, were inadequate. This
suggests a one-time injury, redressable in damages, not one appropriate for an
injunction. Mr. Abulkhair’s request for prospective injunctive relief is therefore
dismissed for failure to state a claim, against all defendants.
In addition, to the extent these claims may seek alternative injunctive
relief, they still would not avoid the Eleventh Amendment bar. Under the
exception of Exparte Young, the Eleventh Amendment permits a suit for
prospective injunctive relief against state officials. To determine whether Ex
parte Young applies, a court conducts a “straightforward inquiry into whether
[thej complaint alleges an ongoing violation of federal law and seeks relief
characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 645 (2002) (citing Idaho v. Coeurd’Alene Tribe of Idaho, 521 U.s.
261, 296 (1997) (O’Connor, J., concurring in part and concurring in
judgment)). These claims do not allege an ongoing violation of federal law; they
seek reimbursement and damages. As pointed out previously, a plaintiff cannot
9

“re-characteriz[eJ the monetary relief sought as an injunction” or declaratory
relief. See Abulkhair, 2017 WL 2268322, at *11.
C. Constitutional Claims Other Than First Amendment Claims5
In his amended complaint, Mr. Abulkhair asserts several non-First
Amendment constitutional claims against Centinaro, Ross, and Granuzzo.
These claims allege violations of due process and equal protection in violation
of 42 U.S.C.

§ 1983, as well as a conspiracy to deprive him of civil rights in
violation of 42 U.S.C. § 1985.
i. Individual vs. Official Capacity
Defendants argue that these claims should be dismissed against
Centinaro, Ross, and Granuzzo because of Eleventh Amendment overeign
immunity. It is true that “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the
official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71(1989) (citing
Brandon u. Holt, 469 U.S. 464, 471 (1985)). A suit against a state official in his
or her official capacity is thus “no different from a suit against the State itself’
and sovereign immunity thus bars suits for damages. Id. (citing Monell a Dep’t
of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). In short, as to these persons in
their official capacities, the Eleventh Amendment bars these claims, just as it
did as to the State and the OAE. The claims against Centinaro, Ross, and
Granuzzo in their official capacities are therefore dismissed.
Mr. Abulkhair does not specify whether he sues Centinaro, Ross, and
Granuzzo in their individual capacities. However, “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by larers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(internal quotation marks omitted); Vandy v. Millard, No. 5-cv-3970, 2007 WL
894212, at *1 (D.N.J. Mar. 20, 2007); cf Fed. R. Civ. P. 8(e) (“Pleadings must be

Mr. Abulkhair’s First Amendment claims are addressed in subsections III.E—F,
infra. This subsection addresses other claims under 42 U.S.C. § 1983, 1985.

5

10

construed as to do justice.”). I will therefore do as the court did in Bacon v.
Sherrer.
The complaint does not specify whether Defendants are being sued
in their official or individual capacities. Because pro se complaints
should be construed liberally, the Court assumes that [Plaintiff] is
seeking compensatory and punitive damages from Defendants in
their individual capacity and injunctive and declaratory relief from
Defendants in their official capacity.
No. 6-cv-504, 2008 WL 906233, at 2 n.2 (D.N.J. Apr. 1, 2008).
I will consider Mr. Abulkhair’s non-First Amendment constitutional
claims for damages as being asserted against Centinaro, Ross, and Granuzzo,
in their individual capacities.
ii. Constitutional Claims For Damages Against Centinaro,
Ross, and Granuzzo in Their Individual Capacities
1. Due Process Claim

Mr. Abulkhair claims to have been denied dues process because the OAE
did not reimburse him for attorney Smith’s alleged negligence in accordance
with New Jersey Court Rule 1:28. Rule 1:28 does not, however, create a right
or entitlement to reimbursement. Rather, the rule directs the Supreme Court of
New Jersey to appoint seven trustees to administer and operate the Fund, N.J.
Ct. R. 1:28-1(a), and grants them discretion to provide reimbursement under
certain specified circumstances:
The trustees in their sole discretion but on the affirmative vote of 4
of them shall determine which eligible claims merit reimbursement
from the Fund and the amount, time, manner, conditions and
order of payment of reimbursement. In making such
determinations the trustees shall consider, among other
appropriate factors, the following:
(1) The amounts available and likely to become available to
the Fund for the payment of claims and the size and number
of claims which are likely to be presented;
(2) The amount of the claimant’s loss as compared with the
amount of losses sustained by other eligible claimants;
11

(3) The degree of hardship suffered by the claimant as a
result of the loss;
(4) The degree of negligence, if any, of the claimant which
may have contributed to the loss;
(5) The potential for recovery from a collateral source.
Id. 1:28-3(b).
For a claim to be “eligible,” the attorney about whom a claim is submitted
must have “been suspended, disbarred or placed in disability inactive status,
resigned with prejudice or

[]

[1

pleaded guilty to, or been convicted of

embezzlement or misappropriation of money or other property; or an ethics
committee [must have] certified a claim to the trustees as an appropriate
matter for their consideration.” Id. l-28:3(a)(2). “Where an ethics committee
does not act and an attorney cannot be located, is deceased or incapacitated,
the trustees may consider timely application directly provided that the trustees
find that the claim is an appropriate matter for their consideration[.]” Id.
The New Jersey Superior Court Appellate Division has elaborated thus:
[T]he [New Jersey] Supreme Court is vested with exclusive
authority over the regulation of the Bar. Pursuant to this authority,
the Court created the Fund for the express purpose of reimbursing,
to a certain extent, the losses caused by the dishonest conduct of
members of the New Jersey bar. Notably, though, the Court
mandated that ‘[n]o claimant or any other person or organization
shall have any right in the Fund as beneficiary or otherwise.’
Rather, the Court directed it would be within the ‘sole discretion’ of
the seven trustees appointed to administer and operate the Fund
to determine ‘which eligible claims merit reimbursement from the
Fund and the amount, time, manner, conditions and order of
payment of reimbursement.’
GE Capital Mortg. Servs., Inc. v. New Jersey Title Ins. Co., 754 A.2d 558, 560
(N.J. Super. Ct. App. Div. 2000) (internal citations omitted)
Rule 1:28 does not create a right to reimbursement and thus Mr.
Abulkhair does not have a due process claim for the “denial of reimbursement.”
He does not have a property interest in the benefits. They are awarded solely at
12

the discretion of the trustees of the Fund. See Town of Castle Rock, Cob. v.
Gonzales, 545 U.S. 748, 756 (2005) (“To have a property interest in a benefit, a
person clearly must have more than an abstract need or desire and more than
a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.... Our cases recognize that a benefit is not a protected
entitlement if government officials may grant or deny it in their discretion.”
(internal quotation marks and citations omitted)).
And not only are such payments discretionary; they are not even
potentially awarded unless an attorney has been disbarred, subjected to
certain other sanctions, or certified to the Fund’s trust by an ethics committee.
N.J. Ct. R. l-28:3(a)(2). The amended complaint does not state that Mr. Smith
was disbarred, suspended or placed on disability inactive status; that he
resigned with prejudice or pled guilty to embezzlement or misappropriation of
money; or that an ethics committee certified a claim to the Fund’s trustees for
consideration. No such prerequisites have been alleged and therefore it does
not appear that this claim was eligible for compensation under the Fund’s
rules. See N.J. Ct. R. l-28:3(a)(2).
Mr. Abulkhair’s claim to have been deprived of an award without due
process is therefore dismissed.
2. Equal Protection Claim
Mr. Abulkhair claims that defendants discriminated against him based
on his race, religion, and disability, in violation of the Fourteenth Amendment.
I consider these equal protection claims for damages against Centinaro, Ross
and Granuzzo in their individual capacities.
To state an equal protection claim, a plaintiff must allege, and ultimately
prove, “intentional discrimination.” Hassan v. City of New York, 804 F.3d 277,
294 (3d Cir. 2015) (citing Washington v. Davis, 426 U.S. 229, 241 (1976); Pers.
Adm’r of Mass. v. Feeny, 442 U.S. 256, 276 (1979)). Plaintiff’s membership in a
protected class must have been “a substantial factor in th[e] different
treatment.” Id. (citing Davis, 426 U.S. at 235).
13

Regarding race, religion, and disability discrimination, the amended
complaint fails to state a plausible claim. The amended complaint notes that
Mr. Abulkhair is of the Muslim faith and that he walks with a limp, using a
cane. (AC

18, 89, 149). One of the investigators, Ross, allegedly asked Mr.

Abulkhair a few questions about his disability. (AC

¶3 18-23). These facts alone

do not give rise to an inference of intentional discrimination by Centinaro, Ross
and Granuzzo. First, Mr. Abulkhair makes no specific, non-conclusory
allegations regarding race, religion, or disability with respect to Centinaro or
Granuzzo at all. Second, Mr. Abulkhair’s sole factual allegations against Ross
are that Ross noticed that Mr. Abulkhair walks with a cane and a limp, and
asked him a few questions about it. (AC

¶f 18-23). Ross was evaluating

whether to recommend disbursing money from the Fund to Mr. Abulkhair. The
selection criteria include the degree of hardship faced by the claimant. (N.J. Ct.
R. 1:28-1(a)(3)). Mr. Abulkhair’s injuries also related to the personal-injury
lawsuit that formed the basis of his OAE grievance. (AC 119). No plausible
inference of discrimination arises from Mr. Ross having briefly inquired about
these facts; such inquiries were part of his job.
Voicing a grievance and identifying the protected status of the plaintiff is
not enough, standing alone, to support an inference of intentional
discrimination. See Collick v. William Patterson Univ., No. 16-cv-471, 2016 WL
6824374, at *13 (D.N.J. Nov. 17, 2016), aff’d in part, remanded in part by, 699
F. App5c 129 (3d Cir. 2017); cf Hassan, 804 F.3d at 294. The equal protection
claim is dismissed.
3. Section 1985 Claim
The amended complaint also alleges that defendants conspired to deprive
Mr. Abulkhair of his civil rights in violation of42 U.S.C.

§ 1985.

First, for the reasons stated above, Mr. Abulkhair has not alleged a
cognizable violation of a constitutional right that would furnish an actionable
conspiratorial object. “Section 1985(3)

...

creates no rights. It is a purely

remedial statute, providing a civil cause of action when some otherwise defined
14

federal right—to equal protection of the laws or equal privileges and immunities
under the laws—is breached by a conspiracy in the manner defined by the
section.” Great Am. Fed. Sat’. & Loan Ass’n v. Novotny, 442 U.S. 336, 376
(1979); see also Mucci i,’. Moonachie Rd. of Educ., No. 83-cv-4442, 1985 WL
56602, at *3 (D.N.J. Feb. 21, 1985).
Second, Mr. Abulkhair has not alleged facts supporting the existence of a
conspiratorial agreement. See Farber v. City of Paterson, 440 F.3d 131, 134 (3d
Cir. 2006). “[A]llegations of a conspiracy must provide some factual basis to
support the existence of the elements of a conspiracy: agreement and concerted
action.” Capogrosso u. The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d
Cir. 2009) (citation omitted). The amended complaint contains no
non-conclusoiy factual statements that suggest in any way that the defendants
made an agreement or engaged in concerted action to deprive him of civil
rights. Rather, Mr. Abulkhair concludes that there must have been a
conspiracy to deny him a disbursement from the Fund because he did not
receive money from the Fund.
The claims based on section 1985 are dismissed for failure to state a
claim.
D. Title VII Claim

Mr. Abulkhair asserts a Title VII claim against all defendants. As stated
in my earlier opinion, the Eleventh Amendment immunity does not apply;
Congress purposely abrogated state sovereign immunity when it enacted Title
VII of the Civil Rights Act of 1964. See Fitzpatrick u. Ritzer, 427 U.S. 445, 457
(1976); see also Patterson v. PA Office of Inspector Gen., 243 F. App’x 695, 696
(3d Cir. 2007).
I will therefore consider whether Mr. Abulkhair’s Title VII allegations
state a claim under Rule 12(b)(6). A Title VII claim is subject to the familiar
tripartite McDonnell Douglas analysis:
Title VII prohibits discriminatory employment practices based upon
an individual’s “race, color, religion, sex, or national origin.” 42
15

U.S.C. 2000e—2(a)(1). A plaintiff carries the initial burden of
establishing a prima facie case. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To
establish a prima facie case, [a plaintiff] must demonstrate that:
1) she belongs to a protected class; 2) she was qualified for the
position; 3) she was subject to an adverse employment action; and
4) the adverse action was under circumstances giving rise to an
inference of discrimination. Sarullo u. U.S. Postal Sew., 352 F.3d
789, 797 (3d Cir. 2003). If [the plaintiff] establishes a prima facie
case, the [defendant] must provide a legitimate, non-discriminatory
reason for the adverse employment action. Jones z,’. Sch. Dist. of
Phila., 198 F.3d 403, 410 (3d Cir. 1999). If the [defendant] is able
to proffer such a reason, [the plaintiff] must show that it is a
pretext for discrimination. Id.
Shahin u. Delaware, 424 F. App’x 90, 92-93 (3d Cir. 2011).
The claim fails at the outset. Title VII prohibits discriminatory
employment practices. Mr. Abulkhair’s amended complaint makes no

allegations about employment at all. He does not state that he was employed
by any of the defendants. Rather, his amended complaint focuses solely on how
the State, the OAE, and the individual defendants allegedly mishandled his
grievance with attorney Smith.
The Title VII claims are therefore dismissed for failure to state a claim.
E. Religious Discrimination in Violation of the First Amendment
and the NJLAD

Mr. Abulkhair fails to state a

§

1983 claim under the First Amendment or

a claim under the NJLAD because the amended complaint contains no specific
factual allegations that give rise to an inference of religious discrimination. The
amended complaint does allege generally that “[D]efendants’ denial of
recoupment and compensation would not be decided except for Abulkhair’s
disability, ‘strong language,’ and prejudice[] against his Islamic faith.” (AC

¶

149).
Once again, however, it is not sufficient merely to voice a grievance and

state that one is a member of a protected class; facts giving rise to a reasonable

16

inference of discrimination must be pled. “After Iqbal, it is clear that conclusory
or ‘bare-bones’ allegations will no longer survive a motion to dismiss:
‘threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”’ Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (quoting Iqbal, 556 U.s. at 678). To prevent dismissal,
all civil complaints must set forth “sufficient factual matter” to show that the
claim is facially plausible. Id, (citing Iqbal, 556 U.S. at 677). Mr. Abulkhair’s
amended complaint contains no factual allegations supporting an inference of
discrimination; it merely states a grievance and attributes it to Mr. Abulkhair’s
faith. That allegation lacks sufficient factual content to survive a motion to
dismiss either a First Amendment

§ 1983 claim or a parallel NJLAD claim.

In addition, as noted above, the Eleventh Amendment would bar Mr.
Abulkhair’s First Amendment and NJLAD claims insofar as they are asserted
against the State, the OAE, and the three individual defendants in their official
capacities. New Jersey, too, has not waived its sovereign immunity regarding
NJLAD claims, except where the State is sued in its capacity as an employer.
See Heine v. Comm’r of the Dep’t of Cmty Affairs, No. 2:1 1-cv-5347, 2016 WL
7042069, at 8 (D.N.J. Dec. 1, 2016) (finding NJLAD claims barred by the
Eleventh Amendment); Heine v. Comm’r of the Dep’t of Cmty Affairs, No.
2:1l-cv-5347, 2014 WL 4199203, at *5 (D.N.J. Aug. 22, 2014) (“Other judges of
these Courts have persuasively held that, at least where the state is not sued in
its capacity as an employer, New Jersey has not waived sovereign immunity in
the NJLAD.” (citing Rudolph v. Adamar of New Jersey, Inc., 153 F. Supp. 2d
528, 542 (D.N.J. 2001)); see also Cox v. Office of Att’y Ethics, No. 5-cv-1608,
2006 WL 3833470, at *4 (D.N.J. Dec. 29, 2006) (finding that the OAE is
immune from NJLAD claims). As noted above, the amended complaint contains
no allegation that any defendant employed the plaintiff.
The amended complaint therefore fails to allege an actionable First
Amendment or NJLAD claim for religious discrimination. Those claims are
dismissed.
17

F. First Amendment Retaliation Claim

To plead a retaliation claim under the First Amendment, a plaintiff must
allege “(1) constitutionally protected conduct, (2) retaliatory action sufficient to
deter a person of ordinary firmness from exercising his constitutional rights,
and (3) a causal link between the constitutionally protected conduct and the
retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)
(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). “[Tjhe key question
in determining whether a cognizable First Amendment claim has been stated is
whether ‘the alleged retaliatory conduct was sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights.”’ McKee u. Had,
436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228,
235 (3d Cir. 2000)). Once again, there is an Eleventh Amendment bar to the
claims as against the State, the OAE, and the individual defendants in their
official capacities. Even as to those defendants in their individual capacities,
however, the complaint does not state a retaliation claim.
Mr. Abulkhair alleges that he used “strong language” to criticize the
judicial system and the judges” in particular. (AC

¶

27). He alleges that Ross

was “stunned and appalled’ towards Abulkhair’s ‘strong language’ against the
judges and the system” and therefore discriminated against him. (AC

¶

28). In

his report to the OAE, allegedly noted that Mr. Abulkhair used “strong
language” against the judiciary. (AC

¶

31).

Mr. Abulkhair fails to adequately plead that there was a connection
between his statements and some retaliatory action. True, using intemperate
language cannot be punished. By the same token, however, it does not
immunize a person against any and all adverse rulings on the merits.
Mr. Abulkhair’s complaint to the OAE primarily implicated his attorney;
the OAE does not investigate judges. He submitted a complaint to the OAE
regarding attorney Smith, the complaint was investigated, and Smith was
ordered to attend a remedial legal education course as a result. (AC

¶

83-85).

That does not plausibly bespeak retaliation for speaking disrespectfully of
18

judges; Mr. Abulkhair’s complaint against an attorney resulted in
consequences to the attorney. Mr. Abulkhair argues that the consequences
should have been more severe and that he should have been compensated. But
no plausible connection drawn between Mr. Abulkhair’s statements to the
investigator and the OAE’s ultimate ruling. Being “appalled” by intemperate
language (an understandable reaction) is very different from discriminating
against a viewpoint, or against speech in general. At any rate, a complainant
does not, by virtue of intemperate speech, gain some kind of upper hand in an
OAE investigation. Nor is it plausibly alleged that the OAE’s action against
Smith in this case would tend to deter a person of reasonable firmness from
verbally abusing the judiciary if he wished to do so.6
For these reasons, Mr. Abulkhair’s First Amendment retaliation claim is
dismissed.
G. ADA Claim

Title II of the ADA prohibits a “public entity” from discriminating against
a “qualified individual with a disability” on account of that individual’s
disability. 42 U.S.C.

§ 12132; see Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206,

208 (1998). “[I]nsofar as Title II creates a private right of action for damages
against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” United States
a Georgia, 546 U.S. 151, 158-59 (2006).
In Baxter v. Pa. Dep’t of Corr., the Third circuit has articulated an
analytical framework for claims against states under Title II of the ADA. 661 F.
App3c 754, 756 (3d Cir. 2016). First, determine if the alleged conduct states a
claim under Title II. Id. If it does, determine if the alleged conduct also violates
the Fourteenth Amendment. Id. If the alleged conduct violates the ADA and the
Fourteenth Amendment, the individual can sue the state despite state
sovereign immunity. Id. If the alleged conduct does not violate the Fourteenth
For what it is worth, the descriptions of the State judges in the amended
complaint would tend to confirm that Mr. Abulkhair was not in fact deterred.

6

19

Amendment, the district court must determine whether Congress’s purported
abrogation of state sovereign immunity is nonetheless valid. Id.; see United
States u. Georgia, 546 U.S. at 159; Bowers v. NCA4, 475 F.3d 524, 553 (3d Cir.
2007). The Third Circuit has found that, at least as applied to education,
Congress is within its constitutional authority to abrogate sovereign immunity
under Title II of the ADA, even for conduct that falls short of a violation of the
Fourteenth Amendment. Bowers, 475 F.3d at 555-56.
To establish a prima facie case under Title II of the ADA, the plaintiff
must show that (1) he is a ‘qualified person with a disability’; (2) he was either
excluded from participation in or denied the benefits of a public entity’s
services, programs or activities, or was othenvise discriminated against by the
public entity; and (3) such exclusion, denial of benefits, or discrimination was
by reason of his disability. See Disability Rights New Jersey, Inc. v. Comm’r, 796
F.3d 293, 301 (3d Cir. 2015).
There is no obvious or intuitive inference that the OAE would
discriminate against someone with a leg injury. In the amended complaint, Mr.
Abulkhair alleges that Ross, the investigator for the OAE, noticed his disability
and asked him “a bunch of cocktail questions regarding [hisj visible disability.”
(AC

¶

18). Ross “observed

with a cane.” (AC

9

...

Abulkhair entering his office l[i]mping and walking

18). Ross asked whether the disability was caused by an

injury related to the personal-injury suits, asked about his surgeries, and
inquired as to the date he became disabled. (AC

¶1J

19-20). Ross also asked

Abulkhair how much he received from Social Security. (AC

99

20-23).

Abulkhair alleges that Ross’s line of questioning was discriminatory and too
personal; he claims that this shows that defendants discriminated against him.
(AC

9

23-25).

Mr. Abulkhair’s amended complaint fails to state a claim because he
does not state factual allegations suggesting that he was subjected to
discrimination “by reason of his

...

disability.” See Disability Rights New Jersey,

Inc., 796 F.3d at 301 n.3. Mr. Abulkhair’s alleged disability was caused by an
20

injury from automobile accidents. (AC

¶

19). It was the injury-causing accident

or accidents, and Smith’s representation of him in the resulting personal-injury
suits, that formed the very basis of Mr. Abulkhair’s complaint to the OAE. (AC

¶

19). The amended complaint It alleges that Investigator Ross asked Mr.

Abulkhair a few questions about his disability. That disability, however, was
central to Mr. Abulkhair’s complaint to the OAE. That complaint arose from the
personal injury lawsuit, and Rule 1:28 instructs the OAE to consider the
hardship faced by each complainant. N.J. Ct. R. 1:28-3(b). That Ross asked
some questions, given the context, does not support an inference that he
intended to discriminate. Regarding Centinaro and Granuzzo, the complaint
does not state any specific factual matter at all.
Moreover, Mr. Abulkhair does not plead facts supporting any inference of
discrimination by a public entity. As discussed above, Mr. Abulkhair filed a
complaint against an attorney, the OAE investigated the grievance, and the
attorney received a consequence as a result. That Mr. Abulkhair wanted the
attorney to suffer a greater consequence, or that he felt he should have received
a financial benefit, does not in itself evince disability-based discrimination.
The conclusory statements in this amended complaint fall far short of the
Iqbal and Twombly pleading standard. The ADA claim is dismissed.
H. Negligent Infliction of Emotional Distress

I begin with an additional word about the Eleventh Amendment’s grant of
sovereign immunity in relation to state common law tort causes of action,
including claims that fall within the limits of the New Jersey Tort Claims Act
(“NJTCA”). See College Savings Bank v. Florida Prepaid Postsecondary Ethic.
Expense Bd., 131 F.3d 353, 355 n.1 (3d Cir. 1997) (noting that a claim of
common law unfair competition “obviously could not be asserted successfully
[against an instrumentality of the state] in light of the Eleventh Amendment”),
affd, 527 U.S. 666 (1999); Doe v. Division of Youth & Family Serus., 148 F.
Supp. 2d 462, 492 (D.N.J. 2001) (finding that a common law negligence claim
was barred by the Eleventh Amendment). Sovereign immunity would bar a
21

federal court tort claim for damages against the State, the OAE, and the
individuals in their individual capacities.
That immunity has not been waived. True, the NJTCA provides that
public entities can be sued for certain torts, under certain conditions. See
Fuchilla v. Layman, 537 A.2d 652 (N.J. 1988) (Handler, J., concurring) (noting
that “public entities shall only be liable for their negligence within the
limitations of [the Tort Claims Act]”); N.J. Stat. Ann.

59:1-2 (“[It] is hereby

declared to be the public policy of this State that public entities shall only be
liable for their negligence within the limitations of this act and in accordance
with the fair and uniform principles established herein.”). Indeed, the NJTCA
“expressly waives sovereign immunity as to certain claims.” Warnett v. Corn
Med. Sews., No. 7-cv-129l, 2008 WL 930739, at *6 (D.N.J. Mar. 31, 2008).
That waiver, however, does not encompass Mr. Abulkhair’s assertion of a claim
of negligent infliction of emotional distress in federal court. The Third Circuit
has held that “[t]he [NJ]TCA

...

does not expressly consent to suit in federal

courts and thus is not an Eleventh Amendment waiver.” Hyatt v. Cty. of
Passaic, 340 F. App’x 833, 837 (3d Cir. 20O9). Therefore, Mr. Abulkhair’s
claims against the State, the OAE, and the individual defendants in their
official capacities fail because of sovereign immunity and the NJTCA.
As to the three individual defendants in their individual capacities, Mr.
Abulkhair’s claim of negligent infliction of emotional distress fails to state a
claim under Rule 12(b)(6). The elements of such a claim are well established:
[A plaintiff] can maintain an independent cause of action for
negligent infliction of emotional distress where (1) the defendant’s
negligence caused the death of, or serious physical injury to,
another; (2) the plaintiff shared a marital or intimate, familial
relationship with the injured person; (3) the plaintiff had a sensory
Even setting aside the Eleventh Amendment, the amended complaint fails to
articulate any clear basis to find a waiver under the NJTCA, which generally
immunizes public entities from liability for an injury arising out of any act or omission
by the entity, a public employee, or any other person. N.J. Stat. Ann. § 59:2-1; see
Qreenway Dev. Co., Inc. v. Borough of Paramus, 750 A.2d 764 (N.J. 2000).
7

22

and contemporaneous observation of the death or injury at the
scene of the accident; and (4) the plaintiff suffered severe emotional
distress.... [A plaintiff can also maintain a negligent infliction of
emotional distress claim were he] can demonstrate that the
defendant’s negligent conduct placed the plaintiff in reasonable
fear of immediate personal injury, which gave rise to emotional
distress that resulted in a substantial bodily injury or sickness.
Jablonowska v. Suther, 948 A.2d 610, 617-18 (N.J. 2008); see also Pot-tee u.
Jaffee, 417 A.2d 521 (N.J. 1980).
The allegations of the amended complaint do not approach this threshold
of outrageous conduct. He does not claim that defendants injured an individual
to whom he was personally close; he does not claim a sensory and
contemporaneous observation of death or injury at the scene of an accident; he
does not claim to have been placed in reasonable fear of immediate personal
injury.
The claim for negligent infliction of emotional distress is dismissed.
IV.

MOTION FOR DEFAULT JUDGMENT AND MOTION TO STRIKE
DEFENDANTS’ ANSWER

Mr. Abulkhair has cross-moved for entry of default and for the court to
strike defendants’ answer.8 That motion will be denied.
Mr. Abulkhair filed his amended complaint on June 23, 2017. (The
amended complaint, recall, added the individual defendants, Centinaro, Ross,
and Granuzzo.) (AC). Defendants received an extension to respond, until July
28, 2017. (ECF No. 26). On August 2, 2017, defendants received a 30-day
extension. (ECF No. 29). Defendants filed their motion to dismiss on September
21, 2017, which was beyond the 30-day extension. (ECF No. 36).
Mr. Abulkhair’s cross-motion is denied. As to the State and the OAE,
there was no default. They had long ago appeared in the case. True, there was
a 20-day delay in filing the motion to dismiss. For such tardiness, which had

There is no answer filed to the amended complaint. The reference may be to the
motion to dismiss.
8

23

already been remedied at the time Mr. Abulkhair filed his cross-motion, entry
of default is not appropriate. This short delay is excused.
As to Centinaro, Ross, and Granuzzo, service had not been accomplished
at the time of the motion to dismiss or at the time of the cross-motion. (ECF
Nos. 53-57). Indeed, it still has not been accomplished. (See ECF No. 57.)
Under Federal Rule of Civil Procedure 55, a default judgment can be entered
only where there has been proper service. See Petnicelli i-c Bohñnger &
Ratzinger, 46 F.3d 1298, 1303-04 (3d Cir. 1995).
Mr. Abulkhair’s motion for entry’ of default and to strike defendants’
answer is denied.
V.

CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss is granted
and the amended complaint is dismissed.
As to the State of New Jersey and the OAE, this is defendant’s second
unsuccessful attempt to file a viable complaint. I conclude that further
amendment would be futile, and the dismissal is therefore with prejudice.
As to the individual defendants, Centinaro, Ross, and Granuzzo, who
were named for the first time in the amended complaint, the dismissal is
without prejudice to the filing, within 30 days, of a second amended complaint
that remedies the deficiencies identified in this opinion.

Dated: March 15, 2018

KEVIN MCNULTY
United States District Judge

24