MENDEZ v. NEW JERSEY STATE LOTTERY COMMISSION et al
Filing
52
OPINION. Signed by Judge Freda L. Wolfson on 12/17/2012. (gxh)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________________________
:
ISAAC MENDEZ,
:
:
Plaintiff,
: Civ. Action No.: 11-6932 (FLW)
:
v.
:
OPINION
:
NEW JERSEY STATE LOTTERY COMMISSION,
:
NEW JERSEY ATTORNEY GENERAL,
:
NEW JERSEY STATE TREASURY
:
NEW JERSEY DEPARTMENT OF ARCHIVES &
:
RECORDS MANAGEMENT,
:
NEW JERSEY OFFICE OF THE PUBLIC
:
ADVOCATE,
:
LOUIS DAVID BALK, ESQ.,
:
MARIBEL TORRES,
:
REYNALDO TORRES,
:
MARC SAPIN, ESQ.
:
LAW FIRM OF FUCHS, GREENBERG & SAPIN,
:
LAWRENCE LEVEN, ESQ.
:
:
Defendants.
:
________________________________________________________ :
WOLFSON, District Judge:
Presently before the Court are three separate motions filed, respectively, by
Defendants New Jersey State Lottery Commission, New Jersey Attorney General,
New Jersey State Treasury, New Jersey Department of Archives & Records
Management and New Jersey Office of the Public Advocate (collectively, the “State
Defendants”), Defendant Louis David Balk, Esq. (“Balk”) and Defendants Marc E.
Sapin, Esq. and the Law Firm of Fuchs, Greenberg & Sapin (collectively, the “Sapin
Defendants”), to dismiss Plaintiff Isaac Mendez’s (“Plaintiff”) Second Amended
Complaint (the “Complaint”). Plaintiff’s three-count Complaint asserts causes of
1
action under 42 U.S.C. §§ 1983 and 1985 and broadly alleges that the State
Defendants, acted in concert with the other non-State Defendants, deprived Plaintiff
of his procedural due process rights in two separate actions in the New Jersey State
Courts relating to an investigation of a lottery ticket. For the reasons that follow, the
motions to dismiss are GRANTED. 1
I. BACKGROUND & PROCEDURAL HISTORY
When considering a motion to dismiss under Rule 12(b)(6), the Court is
obligated to accept as true allegations in the complaint and all reasonable inferences
that can be drawn therefrom, and view them in the light most favorable to the nonmoving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). As
such, the following facts are taken from the Complaint. 2
Plaintiff claims that he purchased the winning ticket for the New Jersey
Lottery Pick 6 on September 16, 2002. Compl. ¶ 61. Shortly after purchasing the
ticket, Plaintiff inadvertently dropped the ticket while on the bus. Id. at ¶ 66.
Plaintiff alleges that Maribel Torres, Reynaldo Torres and Juan Carlos Ayala found
the ticket, and they subsequently filed a claim for the winning ticket on or about
September 25, 2002. Id. at ¶¶ 67-69. Around the same time, Plaintiff also claimed
ownership of the winning ticket by contacting the New Jersey Lottery Commission
(“Lottery Commission”). Id. at ¶ 70. Because there were two claims made for the
Defendants Maribel and Reynaldo Torres have not been served with the
Complaint in this matter. Additionally, while defendant Lawrence Leven has been
served, he has not moved to dismiss the Complaint.
1
Plaintiff’s 128-page Complaint, while not a picture of clarity, alleges the
underlying facts in torturous detail. It is unnecessary to repeat every allegation
here, and thus, the Court recounts only those facts relevant to deciding the instant
motions.
2
2
same winning ticket, the Lottery Commission opened an investigation. Id. at ¶ 71.
After the conclusion of the investigation, the winnings were paid to Maribel and
Reynaldo Torres. Id. at ¶ 72.
Subsequent to the Commission’s decision, on November 12, 2002, Plaintiff
filed suit in the Superior Court of New Jersey, Hudson County, docket no. HUD-L-
7987-02 (the “2002 action”), against the Lottery Commission and Acting Director
Carole Heidinger, alleging that they denied Plaintiff a hearing in order to determine
ownership of the winnings. Id. at ¶ 73. The state court complaint also named
Maribel and Reynaldo Torres as defendants. Id. Prior to the start of the trial, on
October 8, 2003, an agreement was reached between the parties’ attorneys,
including Plaintiff’s attorney, wherein the Lottery Commission and Hedinger would
be granted a voluntary dismissal in exchange for making available the testimony of
Lottery Commission employees without the need of subpoenas. Id. at ¶ 74. The trial
occurred on October 28, 2003, during which two investigators from the Lottery
Commission testified. Hedinger was not called to testify at trial. Id. at ¶ 75. On
November 3, 2003, the jury ruled in favor of the Torreses and awarded them the
lottery winnings in the amount of $1,955,158. Id. at ¶ 77. Plaintiff filed a notice of
appeal on December 12, 2003; Plaintiff’s appeal was denied by the Appellate
Division on October 21, 2004. Id. at ¶¶ 78, 82.
On October 9, 2009, Plaintiff filed a second lawsuit in the Superior Court of
New Jersey, Hudson County, against the State Defendants, docket no. HUD-L-5075-
09 (the “2009 case”). Id. at ¶ 90. That complaint initially sought an injunction to
protect an audio tape recording of Plaintiff’s statement to the Lottery Commission
3
and security video surveillance footage from the Lottery Commission headquarters.
Id. On motion from the State Defendants, the case was transferred to Mercer County
on November 5, 2009. Id. at ¶ 108. Plaintiff filed an amended complaint on
November 16, 2009, adding new defendants and allegations of civil rights violations
which he claimed occurred during the 2002 action. Id. at ¶ 110. With the new
allegations, Plaintiff improperly removed the case to federal court on November 23,
2009; the case was remanded to state court on January 6, 2010. 3 Id. at ¶¶ 112, 121.
The Sapin Defendants filed an answer to Plaintiff’s amended complaint on January
15, 2010. Id. at ¶ 136.
On January 11, 2010, the State Defendants moved to dismiss the 2009
complaint, which was granted on February 5, 2010.
Id. at ¶¶ 126, 143.
Subsequently, the state court clarified that the February 5, 2010 order only
dismissed Plaintiff’s initial complaint, and not the amended complaint. 4 Id. at ¶¶
162, 173. Plaintiff filed for default against the State Defendants on March 19, 2010.
Id. at ¶ 175.
The Mercer County Court Clerk entered default as to the State
Defendants on April 7, 2010. Id. at ¶ 180. The State Defendants thereafter moved to
vacate the default on April 26, 2010. Id. at ¶ 188. On May 14, 2010, the state court
The amended complaint in the 2009 case included claims arising under 18
U.S.C.S §§ 1505 & 1512, which are federal criminal statutes. It appears Plaintiff
based his removal motion upon the assertion of those statutes. However, the
District Court remanded the case because Plaintiff, as a private citizen, lacked
standing to bring claims under federal criminal statutes. Compl., ¶¶ 112, 121.
3
Because of an administrative oversight, Plaintiff’s amended complaint was
missing from the clerk’s file for a period of time. Ultimately, the error was
corrected, and the case proceeded.
4
4
found that Plaintiff had not properly served the State Defendants with the amended
complaint and granted the motion to vacate default. Id. at ¶ 204.
On July 23, 2010, the state court granted the Sapin Defendants’ motion to
dismiss, finding that Plaintiff’s claims against them were barred by the two-year
statute of limitations. Id. at ¶ 208. Plaintiff subsequently filed a motion for relief
from certain orders previously entered by the state court. The state court denied
the request. Thereafter, Plaintiff appealed that decision, but the appeal was soon
dismissed by the Appellate Division on the basis that the trial court decision was not
final. Id. at ¶ 221. On December 17, 2010, the trial court dismissed Plaintiff’s case
against the State Defendants for lack of prosecution. Id. at ¶ 222. While unclear, it
appears that Plaintiff unsuccessfully appealed the trial court decisions dismissing
the Sapin and State Defendants to both the Appellate Division and the Supreme
Court. Id. at ¶¶ 239, 241.
Dissatisfied with the state courts’ decisions, Plaintiff initiated this action.
Plaintiff’s Complaint asserts three separate counts: (1) the State Defendants
deprived Plaintiff of his procedural due process rights and to a default judgment in
the 2009 case, and the non-State Defendants furthered the State’s purpose; (2) the
State Defendants deprived Plaintiff of his default judgment by abuse of process; and
(3) the State and non-State Defendants deprived Plaintiff of his due process rights to
a fair trial. More specifically, while the Complaint is not entirely clear as to the basis
and nature of Plaintiff’s causes of action, Count I alleges that both the State and nonState Defendants violated Plaintiff’s rights pursuant to 42 U.S.C. § 1983 (Id. at ¶ 244)
and Counts II and III allege certain unspecified civil rights violations under 42 U.S.C.
5
§ 1983 and conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985 (Id.
at ¶¶ 267, 281).
II. STANDARD OF REVIEW
When reviewing a motion to dismiss on the pleadings, courts “accept all
factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), the Supreme
Court clarified the 12(b)(6) standard. Specifically, the Court “retired” the language
contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Id. at 561 (quoting Conley, 355 U.S. at 4546). Instead, the factual allegations set forth in a complaint “must be enough to raise
a right to relief above the speculative level.” Id. at 555. As the Third Circuit has
stated, “[t]he Supreme Court's Twombly formulation of the pleading standard can
be summed up thus: ‘stating … a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element. This ‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence’ of the
necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
6
In affirming that Twombly standards apply to all motions to dismiss, the
Supreme Court recently explained the principles. “First, the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). “Second,
only a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 1950. Therefore, “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. Ultimately, “a complaint must do more than
allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an
entitlement with its facts.” Fowler, 578 F.3d at 211.
The Third Circuit recently reiterated that “judging the sufficiency of a
pleading is a context-dependent exercise” and “[s]ome claims require more factual
explication than others to state a plausible claim for relief.” West Penn Allegheny
Health System, Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010). This means that, “[f]or
example, it generally takes fewer factual allegations to state a claim for simple
battery than to state a claim for antitrust conspiracy.” Id. That said, the Rule 8
pleading standard is to be applied “with the same level of rigor in all civil actions.”
Id. (quoting Iqbal, 129 S.Ct. at 1953).
III. DISCUSSION
A. Claims against State Defendants
Gleaning from the Complaint, in asserting violations of his procedural due
process rights under § 1983, it appears Plaintiff alleges that the State Defendants (1)
7
deprived Plaintiff of his right to default judgment; (2) failed to follow the New Jersey
Rules of Civil Procedure or common law; (3) abused their discretionary power to
reinstate the defaulted State Defendants in the 2009 case; (4) allowed and facilitated
the destruction of video surveillance footage evidence relevant to the 2009 case; (5)
abused the process by improperly closing the 2009 case; (6) deprived Plaintiff his
right of access to the courts; and (7) deprived Plaintiff of his right to a tribunal free
of bias and prejudice. See Compl. at ¶¶ 16-20. In response, the State Defendants
argue that Plaintiff’s claims are improperly asserted as Plaintiff’s allegations
primarily refer to actions taken by the State Judiciary, and Plaintiff has not named
the New Jersey State Judiciary as a defendant in this action. 5 Additionally, the State
Defendants contend that Plaintiff is not a person protected under 42 U.S.C. § 1985
and that all of Plaintiff’s claims arise out of actions taken more than two years
before the initial filing of this matter, and thus, are barred by the statute of
limitations.
While the State Defendants’ arguments may have merit, I must
determine, at the first instance, whether the Court has subject matter jurisdiction.
Because I find that the State Defendants – which entirely consist of agencies of the
It is clear that Plaintiff’s claims would also be barred against the New Jersey
State Judiciary and any individual judges or employees of the judiciary had Plaintiff
named them as defendants. It is well-established that “state courts, its employees,
and the judges are entitled to immunity under the Eleventh Amendment because
they are part of the judicial branch of the state of New Jersey, and therefore
considered ‘arms’ of the state.” Dongon v. Banar, 363 Fed. Appx. 153, 156 (3d Cir.
2010) (citing Johnson v. New Jersey, 869 F. Supp. 289, 298 (D.N.J. 2001). Also, these
individual judges and employees would be judicially immune from suit. Mireles v.
Waco, 502 U.S. 9, 12 (1991); see Figueroa v. Blackburn, 208 F.3d 435, 440 (3d
Cir.2000).
5
8
State of New Jersey – are immune from suit under the Eleventh Amendment, the
Court lacks subject matter jurisdiction.
While section 1983 grants a plaintiff means to sue persons acting under state
law, it does not abrogate Eleventh Amendment immunity and permit suits directly
against the State or arms of the State. The Eleventh Amendment provides that “[t]he
judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign state.” 6 The amendment
precludes federal jurisdiction over a state absent the state's consent to suit. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 79 L.
Ed. 2d 67 (1984). The immunity from suit extends to agencies, departments and
officials of the state when the state is the real, substantial party in interest. Id. at
101—02; Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978).
Sovereign immunity applies even if the state is not a named party to the
action, “’as long as the state is the real party in interest.’”
Carter v. City of
Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999) (quoting Fitchik v. New Jersey
Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989). Thus, a plaintiff may
not evade or circumvent a defendant's assertion of sovereign immunity by
purposefully omitting the state as a formal party to a complaint.
Chisolm v.
McManimon, 275 F.3d 315, 322-23 (3d Cir. 2001). In Fitchik, the Third Circuit
Notably, the Eleventh Amendment also precludes federal jurisdiction over a
state absent the state's consent to suit. See Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Hence a section
1983 claim against the State is not only barred by the Eleventh Amendment, but
federal courts also lack subject matter jurisdiction over such a claim. Id.
6
9
explained that the state is a party-in-interest when “the judgment sought would
expend itself on the public treasury or domain, or interfere with the public
administration, or if the effect of the judgment would be to restrain the Government
from acting or to compel it to act.” 873 F.2d at 659. In other words, sovereign
immunity is appropriate if the named defendant is an “arm of the state.” Davis v.
Lakewood, No. 03-1025, 2005 U.S. Dist. LEXIS 16420, 2005 WL 1863665, at *3
(D.N.J. Aug. 4, 2005) (citing Chisolm, 275 F.3d at 323).
The Fitchick court also set forth a three-factor test when determining
whether a defendant is an “arm of the state” entitled to sovereign immunity. These
factors include: “(1) whether payment of a judgment resulting from the suit would
come from the state treasury, (2) the status of the entity under state law, and (3) the
entity's degree of autonomy.” Fitchik, 873 F.2d at 659; see also College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 409 (D.N.J.
1996) (precluding suit where “’the judgment sought would expend itself on the
public treasury or domain, or interfere with the public administration.’”) (internal
citation omitted). In applying this three-factor test, the Third Circuit noted that not
all three factors are not to be given equal weight; rather, the first inquiry — whether
any judgment would be paid from the state treasury — is the most important
question and generally proves dispositive. Fitchik, 873 F.2d at 659; Febres v.
Camden Bd. Of Educ., 445 F.3d 227, 229 (3d Cir. 2006); Davis, 2005 U.S. Dist. LEXIS
16420, 2005 WL 1863665, at *3.
However, “[a] State's immunity from suit is not absolute.” Lombardo v.
Pennsylvania, 540 F.3d 190, 195 (3d Cir. 2008). “[T]here are only three narrowly
10
circumscribed exceptions to Eleventh Amendment immunity (1) abrogation by Act
of Congress, (2) waiver by state consent to suit; and (3) suits against individual state
officials for prospective relief to remedy an ongoing violation of federal law.” M.A.
ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003) (citing MCI
Telecomms. Corp. v. Bell Atlantic-Pennsylvania Serv., 271 F.3d 491, 503 (3d Cir.
2001), cert. denied, 537 U.S. 941, 123 S. Ct. 340, 154 L. Ed. 2d 247 (2002).
As to the first exception, it is clear that there is no Congressional abrogation
of New Jersey's immunity under 42 U.S.C. §§ 1983 or 1985. See Quern v. Jordan, 440
U.S. 332, 340-41 (1979); Seeney v. Kavitski, 866 F. Supp. 206, 209 (E.D. Pa. 1994).
Similarly, as to the second scenario, New Jersey has not waived its sovereign
immunity with respect to § 1983 or § 1985 claims in federal court. Mierzwa v.
United States, 282 Fed. Appx. 973, 976 (3d Cir. 2008); Garcia v. Richard Stockton
College, 210 F.Supp 2d. 545, 549-550, (D.N.J. 2002). Finally, the third exception also
does not apply here as Plaintiff has not named any individual state officials as a
defendant. 7
Here, it is clear that the Lottery Commission, Attorney General, the State
Treasury, Division of Archives and Records Management and Office of the Public
Advocate 8 qualify as “arms of the state” entitled to sovereign immunity under the
Plaintiff’s claims against the State Defendants also fail for the additional
reason that the State Defendants -- which are state agencies -- are not “persons”
under sections 1983 and 1985. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989); see also Rode v. Dellarciprete, 617 F. Supp. 721, 723 n.2 (M.D. Pa. 1985),
vacated in part on other grounds, 845 F.2d 1195 (3d Cir. 1988) (noting that
"persons" in § 1983 and "persons" in §1985 have the same meaning).
7
The Court notes the Office of the Public Advocate, while previously an
executive agency, was eliminated in 2010.
8
11
Eleventh Amendment. In that respect, it is axiomatic that the State Treasury is an
“arm of the state” because, clearly, payment of a judgment resulting from a suit
against the State Treasury would come from the state’s coffers. See Rohrabacher v.
Olivio, No. 07-01496 (FLW), 2008 U.S. Dist. LEXIS 33392, at *7 (D.N.J. Apr, 23, 2008).
Additionally, the Lottery Commission qualifies as an “arm of the state” as it is a part
of the Treasury Department. See N.J.S.A. § 5:9-4 (authorizing statute establishing
within the Treasury Department the Division of State Lottery, “which shall include a
State Lottery Commission”).
Similarly, the Division of Archives and Records
Management is under the authority of the Department of State. Further, other
courts in this district have specifically recognized that the Office of the Attorney
General is immune from § 1983 suits under the Eleventh Amendment. See Torres v.
Davis, No. 11-6190, 2012 U.S. Dist. LEXIS 87446, *17-18 (D.N.J Jun. 22, 2012);
Watkins v. Attorney General of New Jersey, No. 06-1391, 2006 U.S. Dist. LEXIS
73075 (D.N.J. Oct. 3, 2006).
In sum, Congress has not abrogated immunity in this instance, nor has New
Jersey otherwise waived its immunity to Plaintiff’s claims under 42 U.S.C. § 1983 or
§ 1985. Therefore, this Court lacks subject matter jurisdiction to hear such claims as
they are barred by the Eleventh Amendment. Accordingly, the Plaintiff’s claims
against the State Defendants are dismissed.
B. Claims against the Non-State Defendants
Balk and the Sapin Defendants (collectively, the “Non-State Defendants”)
contend that Plaintiff's claims against them should be dismissed for failure to state a
claim. The Court is mindful that the sufficiency of this pro se Plaintiff's pleading
12
must be construed liberally in favor of Plaintiff, even after Iqbal. See Erickson v.
Pardus, 551 U.S. 89 (2007). It appears that the Complaint’s allegations against the
Non-State Defendants arise out of the August 3, 2003 agreement with the Attorney
General, and Plaintiff’s former counsel, concerning the voluntary dismissal of the
Lottery Commission from the 2003 action. However, even construing Plaintiff's
Complaint liberally, it is clear that Plaintiff's claims against those defendants do not
meet the Iqbal standard. The Court shall examine each of Plaintiff's causes of action
against the Non-State Defendants below.
1. Claims under §1983
Section 1983 serves a mechanism through which plaintiffs may bring suit in
federal court for civil rights violations committed by state actors. It provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects . . . any citizen of the United States . . . 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.
42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege, 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. See West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011).
As it is clear from Plaintiff’s Complaint, any violations of Plaintiff's
constitutional rights cannot be attributed to the Non-State Defendants as Plaintiff
cannot show that those defendants were acting within the color of state law.
13
Indeed, these private defendants are not public entities or officials subject to the
purview of § 1983. Catanzaro v. Collins, Civil Action No. 09-922, 2010 U.S. Dist.
LEXIS 41284, *24-25 (M.D. Pa. Apr. 27, 2010) (“Private attorneys and public
defenders are generally not considered state actors for § 1983 purposes when
acting in their capacities as attorneys.”) aff’d 447 Fed. Appx. 397 (3d Cir. 2011); see
also Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509
(1981))(“[a]ttorneys performing their traditional functions will not be considered
state actors solely on the basis of their position as officers of the court.”). Thus, the
Non-State Defendants are private individuals for § 1983 purposes.
Nor has Plaintiff sufficiently pled a claim for conspiracy under § 1983. “A
private individual may be considered to be acting ‘under color of law’ for § 1983
purposes if he or she engages in a conspiracy with state actors for the purpose of
violating a plaintiff's protected civil rights. Cantazaro, 2010 U.S. Dist. LEXIS 41284,
at *25; see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S. Ct. 183, 66 L. Ed. 2d 185
(1980) (citations omitted) (“Private persons, jointly engaged with state officials in
the challenged action, are acting see 'under color' of law for purposes of § 1983
actions.”). However, Plaintiff’s allegations that the Non-State Defendants acted in
concert with the State Defendants to withhold evidence and witnesses in the 2003
action fail to state a claim under § 1983 because Plaintiff’s allegations are nothing
more than unfounded legal conclusions without any plausible factual basis. As such,
Plaintiff has not pled that the Non-State Defendants were acting “under color of
state law” within the meaning of § 1983. Therefore, Plaintiff’s § 1983 claims against
the Non-State Defendants are dismissed.
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2. Claims under § 1985
Section 1985(3) permits a party to bring an action to recover for injuries
incurred by a conspiracy formed “for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3). To establish a
claim for civil conspiracy under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a
conspiracy; (2) motivated by a racial or class based discriminatory animus designed
to deprive, directly or indirectly, any person or class of persons to the equal
protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury
to person or property or the deprivation of any right or privilege of a citizen of the
United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
Here, the Complaint fails to allege that the Non-State Defendants, “motivated
by a class-based invidiously discriminatory animus, conspired to deprive plaintiff of
the equal protection rights of the laws or of equal privileges and immunities under
the laws and that plaintiff was thereby injured.” Cantazaro, 2010 U.S. Dist. LEXIS
41284, at *27 (citing Bougher v. University of Pittsburgh, 882 F.2d 74, 79 (3d Cir.
1989). Even a liberal interpretation of the Complaint fails to reveal any allegations
that the Non-State Defendants, or any other named defendants, were “motivated by
a racial or class based discriminatory animus” towards Plaintiff.
1985(3). As such, the Complaint fails to state a claim under § 1985(3).
42 U.S.C.S. §
Finally, even if the Complaint sufficiently alleged facts supporting a cause of
action under § 1983 or § 1985 against the Non-State Defendants, Plaintiff’s claims
15
would nevertheless be barred by the statute of limitations. Both § 1983 and § 1985
claims are subject to a two-year statute of limitations. Dique v. New Jersey State
Police, 603 F.3d 181, 185 (3d Cir. 2010) (statute of limitations for a § 1983 claim in
New Jersey is two years); Bougher, 882 F.2d at 79 (statute of limitations for
personal injury actions applies to section 1985(3) claims). As the events underlying
Plaintiff’s claims against the Non-State Defendants took place in 2003, more than
two years before Plaintiff filed the Complaint in this matter, Plaintiff’s claims are
barred by the statute of limitations.
As a final note, the Court will briefly address what appears as Plaintiff’s
request for declaratory judgment against the State Defendants. Although unclear
from the brief, Plaintiff requests a default judgment against the State Defendant in
favor of Plaintiff, not in the present matter, but in the 2009 state court action.
Plaintiff’s request is denied for several reasons. To the extent Plaintiff seeks default
judgment entered in the present matter, Plaintiff’s motion is improper as the State
Defendants are not in default and no causes of action against the State Defendants
remain in this matter. Insofar as Plaintiff seeks judgment on the 2009 state action,
the Court lacks the authority to direct the state court to enter judgment or to enter
such judgment directly. Accordingly, Plaintiff’s request is denied.
C. Defendants Maribel and Reynaldo Torres and Leven
Since 120 days have elapsed and Plaintiff has failed to serve the Torreses, the
Court dismisses these two defendants for failure to effectuate proper service. See
Powell v. Symons, 680 F.3d 301, 310 n.8 (3d Cir. 2012) (“Where a plaintiff fails
without good cause to effect service on a defendant within 120 days of the filing of a
16
complaint, a district court does not abuse its discretion by dismissing the action
against that defendant without prejudice.”). Moreover, Plaintiff’s federal claims
against the Torreses and Leven are dismissed for the same reasons why Plaintiff’s
federal claims against the Non-State Defendants are dismissed. Indeed, Leven and
the Torreses are private parties who are not subject to the purview of sections 1983
and 1985. Accordingly, Plaintiff’s claims against these defendants are dismissed for
failure to state a claim.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Complaint fails to state a cause of
action under 42 U.S.C. § 1983 or § 1985 against the moving defendants: Plaintiff’s
claims against the State Defendants are barred by sovereign immunity under the
Eleventh Amendment. As to the Balk and the Sapin Defendants, they are not state
actors within the meaning of § 1983 and Plaintiff has failed to allege that any of their
actions were motivated by a class-based invidiously discriminatory animus.
Additionally, there is no basis for granting Plaintiff’s motion for default judgment
against the State Defendants.
Accordingly, Plaintiff’s request is DENIED;
Defendants’ motions are GRANTED; those claims asserted against the State and
Non-State Defendants are dismissed. Finally, for the same reasons why Plaintiff’s
claims against the Non-State Defendants are dismissed, Plaintiff’s causes of actions
against Maribel and Reynaldo Torres and Leven are dismissed.
DATED: December 17, 2012
17
/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
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