since it was filed, and has never amended the Complaint.
A. Rule 8
Rule 8 requires that plaintiffs provide a "short, plain
statement" of their claims. As the word "Rule" implies,
Rule 8 is not merely aspirational; if a complaint does not comply with
the Rule, it may be stricken. See Nagel v. Pocono Med. Ctr.,
168 F.R.D. 22, 23 (M.D.Pa. 1996) (citing Simmons v. Abruzzo,
49 F.3d 83, 86 (2d Cir. 1995)); Burks v. City of Philadelphia,
904 F. Supp. 421, 424 (E.D.Pa. 1995).
The Plaintiffs' Complaint is neither short nor plain. In fact,
it is the longest, most needlessly repetitive pleading I have
ever seen. Much of the pointless redundancy arises from Malat's
apparent insistence upon repeating the same allegations over and
over again for each plaintiff, each claim, and each set of
defendants. For example, in the allegations of Vito Mirabile
alone, Counts XVIII-XXI, spanning pages 154-97 and ¶¶ 529-600,
are all substantially identical, as are Counts XXIV-XXVII, pp.
201-11, ¶¶ 614-37; Counts XXX-XXXIII, pp. 214-23, ¶¶ 648-71, and
Counts XXXIV-XXXVII, pp. 224-33, ¶¶ 672-95. In my by no means
exhaustive survey, I found about 360 paragraphs that, based upon
a casual inspection, were verbatim repetitions of other
It is this very prolixity that makes the Complaint unclear and
incomprehensible. Only through superhuman patience, effort, and
insight, could any attorney review the allegations of the
Complaint and make paragraph-by-paragraph responses. Unlike
Malat, the Defendants' attorneys do not have the luxury of
clicking the "paste" button on their computer; if they fail to
notice that one or two words have been varied, with meaningful
import, in one of the Complaint's thousand-odd paragraphs, and
inadvertently admit that allegation, they face the risk of
malpractice. The language of each individual allegation, while
not a model of efficient prose, is at least comprehensible. When
considered on the whole, however, the Complaint is utterly
unclear. In no way does the Complaint conform to the concept of
"notice pleading" embodied in Rule 8.
Accordingly, I will grant the Defendants' Motion to Strike the
Complaint. The Plaintiffs may seek leave to refile an Amended
Complaint within 30 days of the date of this Opinion and Order.
If Mr. Malat fails to move to amend the Complaint within 30
days, or fails to support the motion to amend with an Amended
Complaint that complies with the requirements of Rule 8, the
Complaint will be dismissed with prejudice. I also note that, in
amending the Complaint, Mr. Malat would be wise to take
seriously his obligations under Rule 11, as I discuss below.
B. Rule 11
Rule 11 requires attorneys to make an "objectively reasonable"
inquiry into the facts and law supporting their pleadings. In
re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,
278 F.3d 175, 188 n. 7 (3d Cir. 2002); Schering Corp. v.
Vitarine Pharm., Inc., 889 F.2d 490, 496 (3d Cir. 1989).
Sanctions are warranted only when that reasonable inquiry would
have disclosed that a claim or motion is "patently unmeritorious
or frivolous." Doering v. Union County Bd. of Chosen
Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). Before a court
can impose sanctions, the attorney must have received
"particularized" notice of the possible sanction, sufficient to
inform him or her of "the `particularized factors that he [or
she] must address if he [or she] is to avoid sanctions.'"
Anjelino v. N.Y. Times Co., 200 F.3d 73, 100 (3d Cir. 1999)
Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1357 (3d Cir.
Counsel for the State Defendants warned Malat that, in their
opinion, his § 1983 claims against certain state entities and
officers acting in their official capacities, as well as his §
1983 claims against all of the federal Defendants, were
frivolous. Ragonese Cert. Exh. A at 2-3. Malat made no response
at all. Because I agree with the State Defendants,
Rule 11 sanctions are warranted in this case.
As an experiment, I directed one of my legal interns, a
third-year law student, to conduct appropriate legal research in
order to determine whether or not the challenged § 1983 claims
are valid. He needed only seventeen minutes to confirm what
every responsible practioner in this field already knows: they
are not. See 42 U.S.C. § 1983 ("Every person who, under color
of any statute . . . of any State or Territory or the District
of Columbia, subjects . . . any citizen . . . or other person
. . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured. . . .") (emphasis added); Will v.
Michigan Dept. of State Police, 491 U.S. 58, 64, 71, 109 S.Ct.
2304, 105 L.Ed.2d 45 (1989) (holding that state, and its
officers sued in their official capacity for damages, are not
"persons" suable under § 1983); id. at 70, 109 S.Ct. 2304
(holding that state immunity from suit extends to "governmental
entities that are considered arms of the State"); cf. Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 398 n. 1, 91 S.Ct. 1999, 29 L.Ed.2d 619 (Harlan, J.,
concurring) (observing that plaintiffs had no federal
jurisdiction under § 1983 for their suit against federal
I am moved, however, out of respect for Judge Simandle's
recent Order imposing sanctions upon Malat, to limit the
sanctions I will impose at this time. It is clear that Judge
Simandle chose his sanctions wisely and judiciously to ensure
the education of Mr. Malat, a project about which I have serious
reservations. Therefore I deem it best, at this time, only to
The burden is now on Malat, however, to demonstrate that he is
educable. This is the third published opinion admonishing him
under Rule 11 in eighteen months. If Malat fails to bring this
Complaint into compliance with Rule 8 and Rule 11 within thirty
days, I shall be bound by my obligation under Local Civil
Rule 104.1 to report to Chief Judge Bissell the possibility that
Malat has violated the Rules of Professional Conduct.*fn2 In
particular, I will report that it appears that he may have
"exhibit[ed] a pattern of negligence or neglect in the . . .
handling of legal matters generally." N.J. RPC 1.1(b); see also
Clement v. Pub. Serv. Elec. & Gas Co., 198 F.R.D. 634, 637
(N.J. 2001) (recommending to the New Jersey Supreme Court's
Office of Attorney Ethics "that a further investigation be
conducted by the appropriate disciplinary authorities to
determine whether [attorney] is competent to practice law at
all"). The Rules of Professional Conduct have been adopted to
protect the public. If Mr. Malat wishes to continue to enjoy the
privilege of practicing in this Court, he is on notice that the
irresponsible and unprofessional conduct in which he has engaged
will not be tolerated in the future.
For the reasons set forth above, I shall grant the State
Defendants' Motion to
Strike the Plaintiffs' Complaint in its entirety. Plaintiffs
shall have 30 days in which to move for leave to file an Amended
Complaint that complies with Rule 8. I also hereby admonish Mr.
Malat for flagrant and repeated violations of his obligations
under Rule 11. He is further put on notice that any subsequent
breaches of Rules 11, in this case or any other, may be grounds
for an investigation by this Court into his competence to
practice law. The Court will enter an appropriate form of Order.
This matter having come before the Court on Defendants' Motion
to Strike, pursuant to Fed.R.Civ.P. 8, and on Defendants' Motion
for Sanctions, pursuant to Fed.R.Civ.P. 11, David Samson, Esq.,
Attorney General of New Jersey, David M. Ragonese, Esq., Deputy
Attorney General, appearing on behalf of Defendants, New Jersey
Department of Law and Public Safety; Stanley Nunn,
Superintendent, Barney Dyrnes, Internal Affairs Director;
Associate Administrator Valusek; Howard Beyer, Assistant
Commisioner; Jack Terhune, Commissioner; Maggie Aguero, Office
of the Ombudman; Margaret Lebak; Administrator McNamarra; South
Woods State Prison; Peter Verniero; Jaynee La Vecchia; Christine
Todd Whitman; Unnamed Internal Affairs Officers; Unnamed
Employees of the New Jersey Department of Law and Public Safety;
Unnamed Supervising Staff, South Woods State Prison; and Unnamed
Assistant Ombudsmen, and Samuel A. Malat, Esq., appearing on
behalf of Plaintiffs, Angel Mendez, Vito Mirabile, John Young,
and Gustavo Nieves; and,
The Court having considered the papers submitted by counsel
for Defendants in support of the motion and the papers submitted
by counsel for Plaintiffs in opposition;
For the reasons set forth in the Opinion issued herewith, IT
IS, on this 31st day of January, 2002, hereby ORDERED that:
1. the Defendants' Motion to Strike the Complaint is GRANTED;
2. the Defendants' Motion for Sanctions, pursuant to
Fed.R.Civ.P. 11, is GRANTED; and,
3. the Complaint is DISMISSED WITHOUT PREJUDICE; and,
4. Plaintiffs may move to file an Amended Complaint within 30
days of this Order; and,
5. if Plaintiffs shall fail to move to amend the Complaint
within 30 days of this Order, the Complaint shall be dismissed
with prejudice; and,
6. the Court, by publication of the foregoing Opinion and
Order, hereby admonishes the attorney for Plaintiffs, Samuel A.
Malat, Esq., for his repeated and flagrant violations of