AVILA v. STATE OF NEW JERSEY ex rel.
Filing
17
OPINION filed. Signed by Judge Joel A. Pisano on 8/29/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
ABDIEL F. AVILA,
:
Civil Action No. 13-0779 (JAP)
Plaintiff,
:
v.
:
OPINION
STATE OF NEW JERSEY, et al.,
:
Defendants.
___________________________________:
This matter comes before the Court upon Plaintiff’s filing of three motions, see Docket
Entries Nos. 13, 14 and 15 (seeking reconsideration of this Court’s prior ruling and this Court’s
recusal), and upon Plaintiff’s application for transfer this matter to the assigned Magistrate Judge.
See Docket Entry No. 16. For the reasons detailed below, Plaintiff’s motions will be denied, and
his application will be dismissed.
On February 7, 2013, Plaintiff, an inmate presently serving his prison term at the New
Jersey State Prison, submitted for filing his civil complaint (“Complaint”) accompanied by an
application to proceed in forma pauperis under 28 U.S.C. § 1915.1 See Docket Entry No. 1.
1
[Plaintiff] was convicted on the bases of offenses he committed against his
stepdaughter at the time when she was thirteen and fourteen years old. [Plaintiff]
planted in his stepdaughter's backpack a “typewritten letter addressed to her from
the ‘Sisterhood.’ The letter informed her that she was required to undergo sexual
training prior to turning eighteen years old, and part of that training was to have
sex with [Plaintiff] who was, allegedly, the person responsible for her training.
The letter made references to people that would appeal to youth, such as popular
musical artists, and said that these people had undergone such training. [Plaintiff]
told his stepdaughter that she had to engage in sexual activities with him, and if
she did not, people close to her, such as her mother and her godfather, ‘would
The Court denied Plaintiff in forma pauperis status since Plaintiff had already incurred
three strikes and directed Plaintiff to prepay $350 filing fee. See Docket Entry No. 2. The Court
also noted numerous deficiencies in Plaintiff’s complaint and directed Plaintiff to submit an
amended pleading clarifying Plaintiff’s challenges in the event he prepays the filing fee. See id.
In response, Plaintiff submitted an amended pleading, see Docket Entry No. 4, and
another in forma pauperis application, see Docket Entry No. 5, accompanied by a motion for
reconsideration. See Docket Entry No. 6 (effectively asserting that the Court had to address
Plaintiff’s amended pleading on the merits prior to resolving the filing fee issue). The Court redenied Petitioner in forma pauperis status without reaching the merits of his amended pleading.
See Docket Entry No. 7.
On April 16, 2013, Plaintiff prepaid his filing fee and followed it by two motions, one
falsely asserting that this Court dismissed his original complaint on the merits without providing
Plaintiff with an opportunity to amend, see Docket Entry No. 9, and another requesting service of
Plaintiff’s amended pleading upon Defendants without screening. See Docket Entry No. 10.
The Court, however, screened Plaintiff’s amended complaint and dismissed it for failure
to state a claim upon which relief can be granted.2 See Docket Entry No. 11.
probably get hurt.’ Those threats were also contained in the letter.” . . . [Plaintiff]
continued raping his stepdaughter for eight months, until she reported the ordeal
in a note to her grandfather.
Avila v. Warden of N.J. State Prison, 2011 U.S. Dist. LEXIS 57991, at #-4, n.2 (D.N.J. May 31,
2011) (citations to Plaintiff’s state proceedings, original brackets and ellipses omitted).
2
In conjunction with said screening, the Court noted that Plaintiff was a recreational
litigant who had filed numerous civil actions in various courts, including this District and the
Court of Appeals for the Third Circuit, that the bulk of those actions built on Plaintiff’s
redemptionist/sovereign citizen beliefs and that those actions were dismissed as frivolous. See
Page 2 of 9
Specifically, the Court noted that Plaintiff asserted his redemptionist/sovereign citizen
beliefs and, through the prism of these beliefs, challenged his arrest (that took place on June 30,
2006), his conviction/sentence and his resulting incarceration. See id. at 3.
Addressing Plaintiff
challenges to his conviction/sentence and incarceration, and his challenges to the execution of his
sentence within the meaning of the Second Chance Act, the Court pointed out that such
challenges were subject to dismissal for lack of habeas jurisdiction even had they been viable.
See id. at 3-4 (elaborating on the same and providing Plaintiff with the relevant case law).
Turning to Plaintiff’s claim seeking injunctive relief of expungement, the Court found
Plaintiff’s claim without merit. See id. at 4. Analogously, the Court entertained the merits of
Plaintiff’s claim seeking monetary damages for his conviction/incarceration and found that claim
premature under Heck v. Humphrey, 512 U.S. 477 (1994). See Docket Entry No. 11, at 4-5.
Finally, turning to Plaintiff’s challenges attacking his arrest, the Court dismissed that claim as
facially untimely under Wallace v. Kato, 549 U.S. 384 (2007), and the governing statute of
limitations law. See id. at 6-7 and n. 3.
Since the aforesaid deficiencies of Plaintiff’s challenges could not be cured by another
repleading, the Court dismissed Plaintiff’s amended complaint with prejudice. See id. at 7. The
Court’s opinion to that effect, see Docket Entry No. 11 (“May Opinion”), was issued on May 21,
2013, and docketed together with an appropriate order. See Docket Entry No. 12 (“May Order”).
Docket Entry No. 11, at 2-3 (detailing the same and listing indices of some of Plaintiff’s prior
actions); see also Roche v. AG United States, 420 F. App’x 124, 125 and nn. 1 and 2 (3d Cir.
2011) (noting that Plaintiff sought to renounce his United States citizenship on the basis of his
participation in the sovereign citizen movement).
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Within the following five weeks, Plaintiff filed his three motions and one application at
bar. See Docket Entries Nos. 13 to 16.
The first motion sought reconsideration of the Court’s May Order. See Docket Entry No.
13. That motion, a 24-page submission, accused to the undersigned of “bad behavior,” see
Docket Entry No. 13, at 2, reasserted habeas challenges to Plaintiff’s conviction,3 see id. at 2-4
and 12-16, alleged that the Court violated Plaintiff’s rights by screening Plaintiff’s pleading for
sua sponte dismissal, see id. at 4-5, expressed Plaintiff’s opinion that this Court’s legal analysis
was “confusing, conflicting and contradictory,” id. at 5, recited, again, Plaintiff’s challenges to
his June 2006 arrest, see id. at 6-7, alleged that Plaintiff was entitled to amend his non-curableby-amendment claims because he prepaid his filing fee of $350, see id. at 7-8, asserted Plaintiff’s
prior district- and appellate-level frivolous litigations were “immaterial” here, id. at 8-9, and
repeated Plaintiff’s sovereign citizenship/redemptionist beliefs so to support his jurisdictional
challenges to the authority of his convicting state court. See id. at 9-11. The remainder of
Plaintiff’s motion was dedicated to a discussion of the timeliness and prematurity issues, as
Plaintiff perceived them. See id. at 16-23.
Plaintiff’s next motion, see Docket Entry No. 14, included a 28-page brief which
“rejected” this Court’s May Opinion and repeated Plaintiff’s aforesaid statements; it also
requested that the ruling on Plaintiff’s motions would be made by the Magistrate Judge assigned
to this matter. See Docket Entry No. 14-1. Plaintiff’s third motion sought recusal of the
undersigned and asserted bias on the part of this Court. See Docket Entry No. 15.
3
For the reasons not entirely clear to this Court, Plaintiff read the Second Chance Act as
a legislation enabling him to re-litigate his criminal conviction and sentence. See Docket Entry
No. 13, at 11-12.
Page 4 of 9
Plaintiff’s final application was a request for final resolution of this matter by the
Magistrate Judge. See Docket Entry No. 16.
To the extent Plaintiff’s submissions could be construed as a collective motion seeking
reconsideration of this Court’s May Order, that motion will be denied. A motion for
reconsideration is a device of limited utility. There are only four grounds upon which a motion
for reconsideration might be granted: (a) to correct manifest errors of law or fact upon which the
judgment was based; (b) to present newly-discovered or previously unavailable evidence; (c) to
prevent manifest injustice; and (d) to accord the decision to an intervening change in prevailing
law. See 11 Charles A. Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995); see
also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171
(1986). “To support reargument, a moving party must show that dispositive factual matters or
controlling decisions of law were overlooked by the court in reaching its prior decision.”
Assisted Living Assocs. v. Moorestown Tp., 996 F. Supp. 409, 442 (D.N.J. 1998). In contrast,
mere disagreement with the district court’s decision is an inappropriate ground for a motion for
reconsideration: such disagreement should be raised through the appellate process. See id.
(citing Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992),
aff’d, 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)); see
also Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) (a motion for reconsideration
may not be used as a means to reargue unsuccessful theories). Consequently, “[t]he Court will
only entertain such a motion where the overlooked matters, if considered by the Court, might
reasonably have resulted in a different conclusion.” Assisted Living, 996 F. Supp. at 442; see
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also Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995)
(“[M]otions for reconsideration should be granted sparingly”).
Plaintiff’s lengthy submissions offer this Court no basis to alter the May Order.
Plaintiff’s challenges to his conviction/sentence are habeas claims, and they cannot be
entertained in this action. His claims for monetary damages (sought on the basis of Plaintiff’s
conviction/confinement) are premature under Heck. Plaintiff’s challenges to his June 2006 arrest
are untimely, and no reason for equitable tolling can be gleaned from Plaintiff’s lengthy filings.
Plaintiff’s motions express nothing but a disagreements with this Court’s prior ruling. However,
such disagreement should be raised through the appellate process. See Assisted Living, 996 F.
Supp. at 442. Therefore, Plaintiff’s submissions will be denied in substance.
To the extent Plaintiff’s submissions could be construed as a collective motion for this
Court’s recusal, such motion lacks merit.
Under 28 U.S.C. § 455(a), “any justice, judge or magistrate [judge] of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” Section 455(a) requires judicial recusal “if a reasonable person, knowing all the
circumstances, would expect that the judge would have actual knowledge” of his interest or bias
in a case. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988); In re
Kensington Intern. Ltd., 368 F.3d 289, 301 (3d Cir. 2004). In making this determination, the
court must consider how the facts would appear to a “well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical, and suspicious person.” U.S. v. Jordan, 49 F.3d
152, 156 (5th Cir. 1995); accord Clemens v. United States District Court for the Central District
of California, 428 F.3d 1175, 1178 (9th Cir. 2005); Matter of Mason, 916 F.2d 384, 386 (7th Cir.
Page 6 of 9
1990). Importantly, “beliefs or opinions which merit recusal must involve an extrajudicial
factor,” Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (internal
quotation marks and citation omitted), and the Supreme Court has made it clear that “judicial
rulings alone almost never constitute a valid basis” for recusal. Liteky v. United States, 510 U.S.
540, 555 (1994). The reason for this rule is that judicial decisions “in and of themselves can only
in the rarest of circumstances evidence the degree of favoritism or antagonism required” to prove
bias. Id. Consequently, a judge’s prior adverse rulings cannot verify for the bias necessary for
recusal under 28 U.S.C. § 455(a). See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir.
2001); United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000); Leslie v. Grupo ICA, 198
F.3d 1152, 1160 (9th Cir. 1999); United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999).
This is true even if the judge consistently made adverse rulings against the party, see
McCalden v. California Library Assoc., 955 F.2d 1214, 1224 (9th Cir. 1990); United States v.
Mobile Materials, Inc., 881 F.2d 866, 877 (10th Cir. 1989), because an adverse decision, even if
it is adverse on all issues raised, is not evidence of bias, especially when it is supported by the
law and facts. See Crenshaw v. Hodgson, 24 F. App’x 619, 621 (7th Cir. 2001) (citing Gleason
v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994); Byrne, 261 F.3d at 1103). Finally, where issues
of recusal arise, “a federal judge has a duty to sit where not disqualified which is equally as
strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837 (1972); see
also Clemens, 428 F.3d at 1179; Sensley, 385 F.3d at 598-99.
Here, Plaintiff’s seeks this Court’s recusal because the Court addressed the merits of
Plaintiff’s amended pleading and found his claims neither viable nor amenable to cure by repleading. Nothing in the Court’s decision evinced bias; in fact, such claims would have been
Page 7 of 9
dismissed had they been raised by any other litigant. The record here also lacks any extrajudicial
factor that might cause impartiality or antagonism on the part of this Court. If anything, this
Court’s careful parceling of Plaintiff’s claims and grant of leave to amend should have persuaded
him as to this Court’s interest in availing Plaintiff to an opportunity to litigate his claims in good
faith, that is, if such claims had merit.
Plaintiff’s displeasure with this Court’s taking notice of Plaintiff’s prior actions and
sovereign citizenship/redemptionist beliefs (noted even by the Court of Appeals) cannot be
converted into evidence of bias, since: (1) Plaintiff’s beliefs were expressly asserted in support of
his challenges to his conviction/sentence and to the jurisdictional authority of his convicting state
court; and (2) Plaintiff’s allegations here raised had a substantial correlation to Plaintiff’s prior
actions that were dismissed as frivolous. Thus, Plaintiff’s motion for recusal will be denied.
Lastly, Plaintiff’s application for transfer of this matter to exclusive jurisdiction of the
Magistrate Judge will be denied. Federal Rule of Civil Procedure 73 requires consent of both
parties to such transfer. See Fed. R. Civ. P. 73(b)(1); see also Morrison v. Int'l Programs
Consortium, Inc., 205 F.R.D. 61 (D.D.C. 2002) (both parties’ consent to exercise of magistrate
judge’s jurisdiction must be explicit, voluntary, clear and unambiguous); Binder v. Gillespie, 184
F.3d 1059 (9th Cir. 1999) (if both parties fail to consent in writing to have a magistrate judge
conduct civil proceedings and order entry of judgment, the magistrate judge does not have
jurisdiction and any judgment (s)he enters is nullity). Here, because of Plaintiff’s failure to state
a viable claim, Defendants were neither served nor made appearance and, thus, could not have
consented to the Magistrate Judge’s jurisdiction.
Page 8 of 9
For the foregoing reasons, Plaintiff’s motions, Docket Entries Nos. 13, 14 and 15, will be
granted in form and denied in substance, and Plaintiff’s application, Docket Entry No. 16, will be
dismissed. An appropriate Order follows.
/s/ Joel A. Pisano
Joel A. Pisano
United States District Judge
Dated: August 29, 2013
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