accept an amended petition. Id. at 1390. The court found that "commencement of an action by filing a complaint or petition is a basic and integral part of the judicial process," and that the clerks had general subject matter jurisdiction in this area. The court concluded that the clerks had absolute quasi-judicial immunity from civil liability deriving from those actions. Id.
Other courts have similarly held that court clerks are entitled to absolute quasi-judicial immunity for ministerial acts. See Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir. 1979) (court clerk who allegedly failed to send notice of order entitled to absolute quasi-judicial immunity), cert. denied, 445 U.S. 962, 64 L. Ed. 2d 237, 100 S. Ct. 1648 (1980); Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir. 1972) (clerk immune from liability for accepting document revoking bail); DeFerro v. Coco, 719 F. Supp. 379, 381 (E.D. Pa. 1989) (clerk immune from liability for alleged failure to file motion papers).
The court finds that the actions of Ms. Campbell at issue in this case were the functional equivalent of the actions of a court clerk. She was the appointed individual responsible for the ministerial act of filing appeals to the Board. Campbell Aff., PP 1, 2. Her action in refusing to file what she apparently believed to be an improper form of appeal, as in the cases cited above, was not performed "in the clear absence of all jurisdiction." Accordingly, Ms. Campbell is entitled to absolute quasi-judicial immunity for her failure to process plaintiffs' appeal to the Board.
To the extent that Mr. Sabetta, Chairman of the Board, was responsible for this action, he is similarly entitled to absolute immunity. As a member of the Board, Mr. Sabetta was a quasi-judicial official. In determining that an appeal was improperly filed, he would not have been acting in the clear absence of all jurisdiction.
In the alternative, the court finds that defendants are entitled to summary judgment on plaintiffs' due process claims based on the availability of state post-deprivation remedies.
Plaintiffs claim that a due process deprivation was caused by "the unauthorized failure of agents of the State to follow established state procedure," Parratt v. Taylor, 451 U.S. 527, 543, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), and not by the state procedure itself. The complaint alleges that the Board deliberately decided not to file plaintiffs' appeal, contrary to state law. Amended Complaint, P 43, 46.
These types of errors by administrative officials "do not create a federal claim so long as correction is available by the state's judiciary." Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3d Cir. 1984) (citing Parratt v. Taylor), cert. denied, 469 U.S. 1019, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984). In the instant case, plaintiffs could have appealed the Board's failure to process their appeal ten days after submission of the appeal. The statute provides that "failure by the board to hear an appeal and render and file a decision thereon within the time limits prescribed by this subsection shall be deemed a denial of the appeal for purposes of a complaint, application or appeal to a court of competent jurisdiction." N.J.S.A. § 52:27D-127.
Had plaintiffs availed themselves of this state remedy, they would not have been subject to the municipal court action. Also, as discussed above, plaintiffs did take advantage of state remedies after their conviction, and succeeded in getting the conviction overturned.
The court finds that adequate post-deprivation remedies were available to correct any unlawful action by the Board. Therefore, even assuming that plaintiffs were deprived of a protected interest, and that the allegations of conspiracy are true, plaintiffs cannot prevail on a claim under § 1983 for denial of due process.
Plaintiffs have also failed to allege any facts that would support a claim for denial of equal protection. See Amended Complaint, P 49. In particular, plaintiffs have failed to allege any facts indicating that similarly situated parties were treated differently. See Kuhar v. Greensburg-Salem School Dist., 616 F.2d 676, 677 n.1 (3d Cir. 1980) ("An equal protection claim arises when an individual contends that he is receiving different treatment from that received by other individuals similarly situated.") Accordingly, this aspect of the claim should also be dismissed.
The court will enter an appropriate order.
JOSEPH E. IRENAS, U.S.D.J.
Dated: February 10th, 1993