DIPIETRO v. CHRISTIE et al

Filing 5

OPINION filed. Signed by Judge Anne E. Thompson on 4/9/2015. (kas, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Peter DIPIETRO and all others similarly
situated,
Plaintiffs,

Civ. No. 15-1441
OPINION

v.
Acting Governor Christopher CHRISTIE,
et al.
Defendants.
THOMPSON, U.S.D.J.

This matter has come before the Court on the application of pro se Plaintiff Peter

DiPietro (“Plaintiff”) to proceed in forma pauperis (“IFP”). (Doc. No. 1). The Court has
reviewed the IFP application and the Complaint. (Id.). Although the Court will grant
Plaintiffs’ application to proceed IFP, the Court will dismiss the Complaint for violating
the injunction preventing Plaintiff from filing cases in the District of New Jersey relating
to his 2000 New Jersey state court divorce and child custody case without prior
permission of the Court. See DiPietro v. Morisky, 1:12-cv-02338, at 5 (D.N.J. Jan. 3,
2013).
BACKGROUND
Plaintiff states a host of claims against over seventy defendants, including
Governor Christie, the New Jersey Senate President, the United States District Court, the
State of New Jersey, the United States of America, and various other individuals. These
claims all pertain in some way to Plaintiff’s divorce and child custody proceedings in

New Jersey state court. (See Doc. No. 1, Compl., at 15) (“All named Defendant [sic] are
involved in the initiation and ongoing State of Jersey Family Court Action against
Plaintiff.”) Plaintiff has a long history of litigating issues surrounding his divorce and
child custody cases in both state and federal court.1 On January 3, 2013, an injunction
was entered against Plaintiff in the case DiPietro v. Morisky stating that Plaintiff is
“enjoined from filing any claims in [the District of New Jersey] relating to his 2000 New
Jersey state court divorce and child custody case without prior permission of the Court.”
See DiPietro v. Morisky, 1:12-cv-02338, at 5 (D.N.J. Jan. 3, 2013).
Plaintiff’s Complaint and his IFP application were submitted to the Court on
February 25, 2015. (Doc. No. 1). On March 31, 2015, the Court received a letter from
Mr. Patrick Madden, counsel for Defendant Gloucester County Sheriff’s Department,
informing the Court of the injunction against Plaintiff entered in DiPietro v. Morisky.
(Doc. No. 3). On April 7, 2015, Plaintiff submitted a letter to the Court claiming that his
Complaint was mishandled because it was a qui tam action that should have been filed in
camera under seal, and thus the Gloucester Sheriff’s Department should not have been
able to access the Complaint. (Doc. No. 4). However, Plaintiff made no arrangements to
file his Complaint in camera, nor did he file a notice of motion along with his Complaint.
Additionally, he did not indicate on his Complaint, the Civil Cover Sheet thereto, or his
IFP Application that the Complaint should be filed under seal or that he was pursuing qui
tam claims. The only references to the False Claims Act appear on pages 29–31 of his 79

1

See, e.g., DiPietro v. Morisky, 1:12-cv-02338 (D.N.J. Jan. 3, 2013); DiPietro v. NJ
Family Support Payment Ctr, 3:08-cv-4761 (D.N.J.); DiPietro v. NJ Family Support
Payment Ctr, 09-cv-3022 (3d Cir.); Dipietro v. Gloucester Cnty Sheriff’s Dept., 1:11-cv0587 (D.N.J.); DiPietro v. Landis Title Co., 1:11-cv-05110 (D.N.J.); DiPietro v. Senula,
1:12-cv-00189 (D.N.J.); DiPietro v. Newfield Nat’l Bank, L-001651-10 (N.J. Super.);
DiPietro v. Vassallo, L-1583-09/A-5207-09T1 (N.J. Super).

page Complaint, and even there he makes no mention of the fact that his Complaint
should be sealed. The first time that Plaintiff raised the issue of his Complaint being filed
in camera under seal was his April 7, 2015 letter.
DISCUSSION
In considering applications to proceed IFP, the court generally engages in a twostep analysis. See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). First, the court
determines whether the plaintiff is eligible to proceed under 28 U.S.C. § 1915(a). Id.
Second, the court determines whether the Complaint should be dismissed as frivolous or
for failure to state a claim upon which relief may be granted, as required by 28 U.S.C. §
1915(e). See id.
1. Application to proceed in forma pauperis
The filing fee for a civil case in the United States District of New Jersey is $350.00,
with an additional $50.00 administrative fee. To avoid paying these fees, a plaintiff may
submit an application to proceed IFP pursuant to 28 U.S.C. § 1915. “In making such
application, a plaintiff must state the facts concerning his or her poverty with some
degree of particularity, definiteness or certainty.” Simon v. Mercer Cnty. Comm. College,
No. 10-5505, 2011 WL 551196, at *1 (D.N.J. Feb. 9, 2011) (citations omitted). A litigant
need not be “absolutely destitute” to qualify. Mack v. Curran, 457 F. App’x 141, 144 (3d
Cir. 2012) (citations omitted).
It appears from the application that Plaintiff has very few assets and does not have
any regular source of income. Upon review, Plaintiff has shown sufficient economic
disadvantage to proceed IFP.

2. Dismissal under 28 U.S.C. § 1915(e)
Having granted Plaintiffs’ application to proceed IFP, the Court must screen the
Complaint to determine whether dismissal is warranted pursuant to 28 U.S.C. § 1915(e),
which directs courts to dismiss any claim that “is frivolous or malicious” or “fails to state
a claim upon which relief may be granted.” Plaintiff himself admits that all the claims in
his Complaint pertain to his state court divorce and child custody cases. Plaintiff has
been enjoined from filing any such claims without prior permission from the Court.
Plaintiff did not seek or receive prior permission from the Court to file this Complaint.
Therefore, Plaintiff’s claims must be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915(e)(2)(B)(ii), and relief will not be granted upon them.
Plaintiff’s arguments about the mishandling of his qui tam claims are misguided
and ultimately inconsequential as to the dismissal of the Complaint. As an initial matter,
it is worth pointing out that Plaintiff’s qui tam claims appear meritless and devoid of the
essential elements of such a cause of action. Plaintiff’s Complaint is primarily focused
on his divorce and child custody proceedings. Furthermore, as the Second Circuit
explained in U.S. ex rel. Pilon v. Martin Marietta Corp., it is the relator’s obligation to
make sure that a qui tam complaint is filed in camera under seal. U.S. ex rel. Pilon v.
Martin Marietta Corp., 60 F.3d 995, 998–1000 (2d Cir. 1995). In that case, the Second
Circuit found that the plaintiffs’ failure to take steps to ensure compliance with the same
requirements under 31 U.S.C. § 3730(b)(2) that Plaintiff discusses in his letter was
grounds for dismissal of their qui tam action with prejudice. Id. There, the plaintiffs also
did not file a notice of motion or make other arrangements for in camera filing, as
Plaintiff failed to do here. Id. at 997. However, the Pilon plaintiffs did at least tell the

court clerk that they were filing a qui tam action and that there were requirements
regarding sealing the case. Id. Even that step was insufficient to meet the requirements
of 31 U.S.C. § 3730(b)(2); the Second Circuit instructed that the plaintiffs should have
submitted the complaint in a sealed envelope and indicated on the complaint itself that it
was to be filed under seal. Id. Here, Plaintiff took none of those steps, nor did he make
any attempt to tell the docket clerk that his Complaint contained a qui tam component
and should be sealed. Accordingly, no court employee has taken any improper action
with regard to Plaintiff’s Complaint, and, were he not enjoined from filing the Complaint,
his qui tam claims would be dismissed because of his failure to comply with the
procedural steps of 31 U.S.C. § 3730(b)(2).
CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff’s application to proceed
IFP and dismiss the Complaint. An appropriate order will follow.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Date: April 9, 2015