THORPE v. THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEE RETIREMENT SYSTEM

Filing 3

MEMORANDUM OPINION filed. Signed by Judge Robert Kirsch on 11/13/2023. (kht)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUDY THORPE,
Plaintiff,
Civil Action No. 23-3788 (RK) (DEA)
V.

THE BOARD OF TRUSTEES OF THE
PUBLIC EMPLOYEE RETIREMENT

MEMORANDUM OPINION

SYSTEM,
Defendants.

KIRSCH, District Judse
THIS MATTER comes before the Court upon Plaintiff Judy Thorpe's ("Plaintiff)
application to proceed in forma pauperis ("DFP"), (ECF No. 1-2), together with Plaintiffs
Complaint against the Board of Trustees of the Public Employee Retirement System
("Defendant"), (Compl., ECF No. 1). For the reasons explained below, Plaintiffs application to
proceed IFP is GRANTED. However, her Complaint is DISMISSED without prejudice.

I. BACKGROUND
The following facts are derived from Plaintiff's Complaint and accepted as true only for
purposes of screening the Complaint pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff worked for
twenty-five (25) years as a registered nurse in New Jersey. (Compl. at 6.) Plaintiff, who suffers
from an ADA-recognized medical disability, began working as the regional supervisor of nursing
services at the New Jersey Juvenile Justice Commission ("JJC") on April 6, 2004. (Id. at 7.) In
June 2007, Plaintiff suffered a work-related injury and took a leave of absence related to the injury.

(Id. ^20, Ex. X.)1 She returned to work on October 29, 2007. {Id. at Ex. X.) Shortly after she
returned to work, on January 4, 2008, Plaintiff was directed to report for a "psychological fitnessfor-duty evaluation." {Id. ^ 20, Ex. EE.) However, Plaintiff refused to participate in the evaluation
and alleges that, had her employer been concerned about her psychological well-being, they should
have offered her resources rather than demand she submit to an evaluation. {Id. ^ 28.)
On January 8, 2008, Plaintiff was served with a Preliminary Notice of Disciplinary Action,
and on January 9, 2008, she was suspended without pay based on her refusal to participate in the
evaluation. {Id. at Ex. EE, Ex. B.) On July 25, 2008, a hearing was held regarding Plaintiffs
suspension, and on August 15, 2008, her employment was terminated. {Id. at Ex. FF, Ex. A.) After
Plaintiff was temunated, she challenged her termination through the Office of Employee relations,
which referred the matter to arbitration. (Id. at Ex. HH.) After an arbitration hearing held on
December 10, 2009, the arbitrator upheld JJC's termination of Plaintiff s employment. (Id. at Ex.

LL.)
After turning sixty (60) years old on April 6, 2021 and "reaching normal retirement age,"
Plaintiff applied for deferred retirement benefits through the Public Employee Retirement System
("PERS"). (Id. 115, 21.) A telephonic hearing on Plaintiffs application was held on July 21,2021,
and Plaintiff was notified the following day that her application was denied. (Id. 116.) The denial
was based on Defendant's finding that she had been "removed [from JJC] for cause on charges of
misconduct." (Id. ^ 29.)
Plaintiff now seeks to challenge the denial of her application for benefits on several
grounds. First, upon reviewing the records related to her application, Plaintiff noticed "a

Plaintiff attaches forty-seven (47) exhibits to her Complaint, which this Court has considered. (See
Compl., Exs. A-RR.) In deciding motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), courts
may consider exhibits attached to the complaint. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see
also Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), as amended (June 14, 2006).

discrepancy"—namely, that a document she received from JJC states that she did not file for
Workers' Compensation when she in fact did. {Id. ^ 19-20.) Plaintiff alleges that she is therefore
"highly concerned that this clear inconsistency suggests there may be other omissions or errors in
the information presented to the Board" that the Board relied upon in denying her application. (Id.
^21.) Plaintiff also alleges that she was wrongfully denied retirement benefits because her
termination from JJC was not "for cause" and because she honorably dedicated her career to public
service as evidenced by numerous commendations received throughout her career. {Id. at ^ 22,
23-27, 29.) Plaintiff alleges that she is bringing claims under N.J.S.A. 43:1-3 and 43:15A-38, the
New Jersey Employer-Employee Relations Act ("EERA"), N.J.S.A. 34:13A-1, et seq., N.J.A.C.
4A:6-1.4(g), the Americans with Disabilities Act ("ADA"), 42 U.S.C § 12101, et seq., 42 U.S.C.

§ 1981, New Jersey Law Against Discrimination ("LAD"), and Title VII of the Civil Rights Act
and requests that the Court overturn Defendant's decision and approve her application for
retirement benefits. (Id. ^[4, 61, 66.)

II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(a), the District Court may authorize a plaintiff to proceed IFP
and order a complaint to be filed without requiring the prepayment of filing fees. The statute "is
designed to ensure that indigent litigants have meaningful access to the federal courts." Deutsch v.

United States, 67 F.3d 1080, 1084 (3d Cir. 1995) (quoting Neitzke v. Williams, 490 U.S. 319, 324
(1989)). However, to guard against potential "abuse" of "cost-free access to the federal courts,"
id. (citing Denton v. Hernandez, 504 U.S. 25, 29 (1992)), section 1915(e) empowers the District
Court to dismiss an IFP complaint if it "is frivolous or malicious" or "fails to state a claim on
which relief may be granted." 28 U.S.C. § 1915(e).

Thus, the District Court engages in a two-step analysis when considering a complaint filed
with an IFP application: "First, the Court determines whether the plaintiff is eligible to proceed
under 28 U.S.C. § 1915(a). . . . 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)." Archie v. Mercer Cnty. Courthouse, No. 23-3553, 2023 WL 5207833, at
*2 (D.N.J. Aug. 14, 2023) (citing Roman v. Jejfes, 904 F.2d 192, 194 n.l (3d Cir. 1990)).

III. DISCUSSION
A. IFP APPLICATION
The IFP statute requires a plaintiff to submit "an affidavit stating all income and assets"
and "the plaintiffs inability to pay the filing fee." Martinez v. Harrison, No. 23-3513, 2023 WL
5237130, at *1 (D.N.J. Aug. 15, 2023) (citing § 1915(a) and Glenn v. Hayman, No. 07-112,
2007 WL 432974, at *7 (D.N.J. Jan. 30, 2007)). In the IFP application, the plaintiff "must state
the facts concerning his or her poverty with some degree of particularity, definiteness or certainty."
Gross v. Cormack, No. 13-4152, 2013 WL 5435463, at *2 (D.N.J. Sept. 27, 2013) (citing Simon
v. Mercer Cnty. Comm. College, No. 10-5505, 2011 WL 551196, at *1 (D.N.J. Feb 9, 2011)).
The Court finds that Plaintiff has included sufficient information for the Court to "properly
evaluate it [and] confmn whether Plaintiff is able to pay the court fees" or "determine Plaintiffs
financial status." Hedgepeth v. Helen FuldHosp., No. 22-6029, 2023 WL 4108510, at *1 (D.N.J.
June 21, 2023). In her application, Plaintiff states that she has a monthly income of $2,720.00 from
disability payments and $300.00 in a checking account. (ECF No. 1-2.) Plaintiff also has assets,
including a home worth $200,000.00 and a vehicle with a salvage title worth $150.00. {Id.)
However, Plaintiffs monthly expenses—which total $3,138.00 and include her mortgage
payment, utilities, homeowners' association fee, food, laundry and dry-cleaning, transportation,

life insurance, motor vehicle insurance, and credit card payments—exceed her monthly income.
(Id.) Plaintiff also indicates that she spends approximately $200.00 per month on expenses related
to this case, including "traveling to the library [,] . . . legal copying, staples, mail, [and expenses
associated with a] process server." (Id.) Upon review, the Court believes that Plaintiff has pled her
circumstances with sufficient particularity and GRANTS Plaintiffs IFP application.
B. REVIEW OF COMPLAINT
Having granted Plaintiff's application to proceed EPP, the Court turns to reviewing the
merits of Plaintiff s Complaint. The Court may dismiss any claims that are "(I) . . . frivolous or

malicious; (2) fail[] to state a claim upon which relief may be granted; or (3) seek[] monetary relief
from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B). "The legal standard for

dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)."
Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012). A court must be mindful to hold a. pro
se plaintiff's complaint to "less stringent standards than formal pleadings drafted by lawyers."
Haines v. Kerner, 404 U.S. 519, 520 (1972).
The Court finds that Defendant is immune from suit under the Eleventh Amendment and
therefore Plaintiffs Complaint must be dismissed. The Eleventh Amendment limits a federal
court's jurisdiction over actions against a state. See In re Hechinger Inv. Co. of Del., 335 F.3d 243,
249 (3d Cir. 2003). The state's sovereign immunity from suit under the Eleventh Amendment also
extends to "arms of the state," such as state agencies and departments. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Chisolm v. McManimon, 275 F.3d 315, 322-23 (3d
Cir. 2001) ("Eleventh Amendment immunity may be available to a state party-in-interest
notwithstanding a claimant's failure to formally name the state as a defendant."). The protections

of the Eleventh Amendment also extend to protect entities when "the state is the real, substantial
party in interest." Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945). Unless a party
waives its sovereign immunity, "a court is without subject matter jurisdiction over claims against
. . . agencies or officials in their official capacities." Treasurer of New Jersey v. U.S. Dep't of
Treasury, 684 F.3d 382, 395 (3d Cm 2012).2 To determine whether an "entity is properly
characterized as an arm of the state" and thus entitled to sovereign immunity, courts in the Third
Circuit apply a three-factor test: "(I) whether the payment of the judgment would come from the
state; (2) what status the entity has under state law; and (3) what degree of autonomy the entity
has." Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 546 (3d Cir. 2007) (citation
omitted).
Courts in this district applying this test have held that Defendant, which is part of the
Division of Pensions and Benefits of the New Jersey Department of the Treasury, is an arm of the
state and entitled to Eleventh Amendment immunity. See, e.g., Jones v. Pub. Emp. Ret. Pensions

Div., No. 09-5894, 2011 WL 6003122, at *3 (D.N.J. Nov. 29, 2011) (finding that "PERS is an arm
of the state and is entitled to Eleventh Amendment immunity, provided the State has not waived
its immunity and that Congress has not abrogated it" and concluding that New Jersey had not
consented to suit nor had Congress abrogated New Jersey's Eleventh Amendment immunity);
Bennett v. City of Atlantic City, 288 F. Supp. 2d 675, 682 (D.N.J. 2003) (same); see also Treasury

2 "A waiver of sovereign immunity must be express and unambiguous to confer subject matter jurisdiction
on a court." Treasurer of New Jersey, 684 F.3d at 396. Plaintiff does not allege that Defendant waived its
sovereign immunity.

3 See Public Employees' Retirement System, New Jersey Department of the Treasury,
https://www.nj.gov/treasury/pensions/pension-active-pers.shtml (last modified February 14, 2023)." The

Court may take judicial notice of information published to government websites on a motion to dismiss
without converting it into a motion for summary judgment." Hafez v. Equifax Info. Sen's., LLC, No. 20-

9019, 2023 WL 2728805,at *1 n.l (D.N.J. Mar. 31, 2023) (collecting cases).

Krupa v. New Jersey State Health Benefits Comm'n, No. 16-4637, 2018 WL 513208, at *4 (D.N.J.
Jan. 23, 2018) (determining that other subdivisions of the Division of Pensions and Benefits were
entitled to Eleventh Amendment Immunity). The Court therefore finds that Defendant is an arm
of the state and is immune from suit under the Eleventh Amendment.
The Court notes that, under the exception articulated in Ex parte Young, 209 U.S. 123
(1908), "while the Eleventh Amendment bars suit for retrospective or compensatory relief, a
plaintiff may sue the state in federal court where the relief sought is a prospective injunction or
declaratory relief." Cap. Bonding Corp. v. New Jersey Supreme Ct., 127 F. Supp. 2d 582, 589
(D.N.J. 2001). However, this exception does not apply to Plaintiff's Complaint for two reasons.
Firstly, this exception only applies to suits brought against state officials. Med. Soc. of New Jersey
v. Mottola, 320 F. Supp. 2d 254, 267 (D.N.J. 2004) ("Under well-established case law, a plaintiff
may only avoid the Eleventh Amendment bar to suit by naming a state officer as a defendant
instead of the state government itself.") In this case, Plaintiff is suing the PERS Board itself, not

an individual PERS official.
Secondly, this exception only applies where a plaintiff alleges an ongoing violation of
federal law. See Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645
(2002) ("In determining whether the doctrine of Exparte Young avoids an Eleventh Amendment
bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as prospective."
(quotation marks and citations omitted)); Green v. Mansour, 474 U.S. 64, 68 (1985) ("We have
refused to extend the reasoning of Young ... to claims for retrospective relief."); Koslow v.

Commonwealth of Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002) ("[A] person seeking purely
prospective relief against state officials for ongoing violations of federal law may sue under the

'legal fiction' oiExparte Young . . ."). Here, Plaintiff requests that the Court approve her benefits
application. (Compl. ^ 66.) While Plaintiff appears to be nominally seeking some form of
injunctive relief, Plaintiff fails to allege any facts from which the Court might infer that there are
future or ongoing violations of Plaintiff's rights under federal law. See, e.g., Surina v. S. River Bd.
ofEduc., No. 20-2804, 2022 WL 264464, at *3 (3d Cir. Jan. 27, 2022) (finding that the Exparte
Young exception did not apply because, although the injunctive relief sought was phrased in
prospective terms, there were no facts alleged indicating that the purported violations of
constitutional law were ongoing); Taylorv. City of Jersey City, No. 22-457, 2023 WL 6997250, at
*4 (D.N.J. Oct. 24, 2023) (dismissing claims on Eleventh Amendment grounds where the plaintiff
offers only a "passing request" for injunctive relief and fails to allege specific facts from which
the Court might infer that the purported civil rights violations were ongoing). Accordingly,
Plaintiffs claims against Defendant are barred by the Eleventh Amendment, and Plaintiffs

Complaint is therefore DISMISSED without prejudice.

4 Moreover, the Ex parte Young exception only applies where a plaintiff alleges ongoing violations of
federal law—to the extent that Plaintiff attempts to allege that PERS officers should be enjoined from
violating New Jersey law, those state-law claims would be barred by the Eleventh Amendment. Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 121 (1984) (holding that the Eleventh Amendment
bars federal courts from enjoining state officers from violating state laws).

IV. CONCLUSION
For the foregoing reasons, Plaintiffs application to proceed IFP is GRANTED. However,

Plaintiffs Complaint is DISMISSED without prejudice. Within thirty (30) days, Plaintiff may file
an amended complaint that fixes the errors identified in this Opinion. An appropriate Order will
accompany this Opinion.

ROBERT KlRS(
UNITED STATES DISTRICT JUDGE
Dated: November 13, 2023