United States District Court, D. New Jersey
August 18, 2005.
VICTORIA PERRY, Plaintiff,
THE HON. DANIEL BERNARDIN, Defendant.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter comes before the Court on the motion to dismiss
filed by Defendant Honorable Daniel Bernardin ("Judge
Bernardin"), a Municipal Court Judge in Cherry Hill, New Jersey.
Judge Bernardin is seeking to dismiss the complaint filed against
him by Plaintiff pro se Victoria Perry ("Plaintiff" or "Ms.
Perry"). The issue before Court is whether Plaintiff's claims
against Judge Bernardin can survive a motion to dismiss. This
Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the
reasons stated below, Judge Bernardin's motion to dismiss is
granted. I. BACKGROUND
In 1996 or 1997, Evan Laine, Esq. represented Ms. Perry's
mother, Ollie, in a personal injury suit. In 1998, Ms. Perry
moved into the house across the street from Evan Laine and his
family, on Saxby Terrace in Cherry Hill. In December 1998, Evan
Laine and his law firm, Gold & Laine, P.C., agreed to represent
Ms. Perry's mother once again. In 1999, Ms. Perry sent her
neighbors, the Laines, various unsolicited items, including a
disturbing letter discussing Plaintiff's religious beliefs,
volunteering that Plaintiff was a virgin, and describing several
sexual acts in great detail. In September 1999, the Honorable
Francis J. Orlando, A.J.S.C. issued an order granting leave for
Defendant Evan Laine and his law firm, Gold & Laine, P.C. to be
relieved as counsel to Ms. Perry's mother. In March 2000,
Plaintiff twice attempted to file criminal charges against
Defendants Evan Laine and Jeffrey Gold, a partner at Mr. Laine's
law firm, for perjury, harassment, conspiracy and other charges.
The Honorable Jeffrey Karl, J.M.C. and the Honorable John
McFeeley, J.M.C. found that there was no probable cause on either
occasion. In July 2000, Ms. Perry filed a statement with the
Cherry Hill Police Department accusing Judge Karl of conspiring
and discriminating against her. She even attempted to file
ethical charges against Judge Karl before the Advisory Committee
of Judicial Conduct. All charges against Judge Karl were declined
and/or found meritless.
In March 2001, Plaintiff filed an ethics complaint against
Defendant Evan Laine, Esq. Defendant Carl D. Poplar, Esq.,
representing Mr. Laine, filed a motion to dismiss the complaint
in its entirety, which was granted. In April 2001, Plaintiff
filed an ethics grievance against Defendant Poplar, which was
also dismissed. In July 2001, Plaintiff sent letters to the New
Jersey Division of Youth & Family Services and Cherry Hill Police
Department alleging that the Laines had neglected their teenage children by leaving them home
In October 2001, Plaintiff filed a complaint in the United
States District Court for the District of New Jersey against Evan
Laine, Jeffrey Gold, Gold & Laine, P.C., Michele Laine (Evan
Laine's wife), Christy Cicalese (an employee of Gold & Laine,
P.C.), Carl Poplar, and Poplar & Eastlack, the predecessor firm
to Carl D. Poplar, P.C. Ms. Perry later sought to add Defendant
Brandon Laine, son of Evan and Michele Laine, as a defendant. The
Honorable Stephen M. Orlofsky dismissed the entire case, with
prejudice, on March 27, 2002. Plaintiff sought reconsideration of
the dismissal and a recusal of Judge Orlofsky, both of which
Judge Orlofsky dismissed. Ms. Perry appealed the case to the
United States Court of Appeals for the Third Circuit, and the
Third Circuit affirmed Judge Orlofsky on April 24, 2003.
In 2002 and 2003, Plaintiff filed complaints against the Laines
with the New Jersey Superior Court, Camden County, Case No.
CAM-L005235-02, and with the New Jersey Superior Court, Mercer
County, Case No. MER-L-803-03. The Honorable John A. Fratto,
J.S.C. dismissed the Camden County complaint and the Honorable
Linda Feinberg, A.J.S.C. dismissed the Mercer County complaint.
Ms. Perry appealed Judge Fratto's decision and also filed another
complaint in the Superior Court, Camden County in February 2004.
However, the defendants were never served with this complaint.
Plaintiff also instituted charges against Evan and Michele Laine
in Cherry Hill Municipal Court in February 2004.
On August 4, 2004, Judge Fratto ordered that Ms. Perry "shall
be restrained and prohibited from filing and/or instituting
lawsuits, Complaints or other legal proceedings which are under
and/or subject to the jurisdiction of the Superior Court of New
Jersey, whether they be Civil, Criminal, Quasi Criminal and/or Administrative, against . . .
Gold & Laine, P.C.; Jeffrey E. Gold, Esquire, Evan E. Laine,
Esquire; Carl D. Poplar, P.C.; Carl D. Poplar, Esquire, Christy
Cicalese; Michele [sic] Laine, Brandon Laine; and Jessica Laine"
without prior approval of a Judge of the Superior Court. Gold &
Laine v. Perry, Docket No. L-1402-04, Order For Restraints (Aug.
4, 2004). The only exception to Judge Fratto's Order is that Ms.
Perry "is permitted to file or institute lawsuits, Complaints,
legal proceedings, without prior approval, through an attorney
licensed to practice law in the State of New Jersey who has duly
filed an appearance on her behalf in each proceeding and said
attorney will sign each pleading and/or document regarding the
Complaints, lawsuits and other legal proceedings." Id.
On September 10, 2004, Judge Bernardin, a Municipal Court Judge
in Cherry Hill, wrote Ms. Perry a letter indicating that he will
"not be making a probable cause determination with regard to
[her] pending complaints" because Judge Fratto's August 4, 2004
Order precludes him from doing so. He also informed Ms. Perry
that "[p]ursuant to the Order [she] can make application to Judge
Fratto" and that "[he] will await direction from the Superior
Court." Letter from Honorable Daniel Bernardin to Victoria L.
Perry of Sept. 10, 2004.
On September 29, 2004, Judge Fratto issued an Amended Order
with the same terms as the August 4, 2004 Order but which also
designated the Honorable John McFeeley, III, P.J.M.C. as the
judge to review any Municipal Court complaint filed by Ms. Perry
against any of the aforementioned defendants. Gold & Laine v.
Perry, Docket No. L-1402-04, Amended Order (Sept. 29, 2004).
Plaintiff filed another complaint against Gold & Laine, P.C.,
Carl D. Poplar, P.A., Jeffrey E. Gold, Esq., Evan E. Laine, Esq., Carl D. Poplar, Esq., Christy
A. Cicalese, Michele Laine, Brandon Laine and Jessica Laine
(Collectively, "Laine defendants") in the United States District
Court for the District of New Jersey on November 24, 2004. The
complaint, docketed as Case No. 04-CV-5842, was dismissed by the
Honorable Robert B. Kugler, U.S.D.J. on December 10, 2004
pursuant to Fed.R.Civ.P. 8(a)
On December 10, 2004, Plaintiff filed a complaint against
Judges Fratto and McFeeley, docketed as Civil Action No.
04-CV-6102. On December 23, 2004, Ms. Perry filed an amended
twelve-count complaint asserting claims against Judges Fratto and
McFeeley, and adding Judges Orlando and Bernardin as Defendants.
On December 21, 2004, Plaintiff filed another complaint against
the Laine defendants and one day later, on December 22, 2004,
filed a nine-count complaint against them, which was denominated
as an amended complaint. Both were assigned a new docket number:
Case No. 04C-V-6255.
On December 31, 2004, Plaintiff wrote me a letter asking me to
handle both this case, which was then pending before the
Honorable Robert B. Kugler, in addition to her Civil Action No.
04-6255,*fn1 which was already pending before me, on the
basis that I could be fair because I had "no prior connection to this file." Letter from Victoria
L. Perry to the Honorable Freda L. Wolfson of Dec. 31, 2004
(emphasis in original). On January 6, 2005, this case was
reassigned from Judge Kugler to this Court for reasons unrelated
to Ms. Perry's request.
On January 14, 2005, Deputy Attorney General Joanne Stipick
wrote Plaintiff a letter stating that it was the Attorney
General's Office's "understanding that [Ms. Perry had] not yet
effected proper service upon" Judges Fratto, McFeely and Orlando,
and advised Plaintiff as to the proper person who is "authorized
to and will accept service on behalf of" Judges Fratto, McFeely
and Orlando, and that the person had agreed to waive formal
summons. Letter from Deputy Attorney General Joanne Stipick to
Victoria L. Perry of Jan. 14, 2005.
On May 17, 2005, the Court entered a Notice of Call for
Dismissal Pursuant to Fed.R.Civ.P. 4(m), indicating that on
June 17, 2005, it would dismiss Plaintiffs's claims against
Defendants Hon. John A. Fratto, Hon. John McFeely and Hon.
Francis J. Orlando "for failure to effect service on the summons
and complaint within 120 days of complaint unless [she]
establish[es] that service was effected within said 120 days or
unless on that date good cause is shown for failure to do so" and
indicating that Plaintiff should file any responsive pleading the
notice on or before June 10, 2005. Perry v. Hon. John A. Fratto,
Et Al., Case No: 04-CV-6102 (FLW), Order (D.N.J. May 17, 2005).
Plaintiff never filed any response or opposition in connection
with the Notice.*fn2 On June 15, 2005, Deputy Attorney General Stipick sent a letter
to the Court indicating that Ms. Perry never attempted to effect
service as outlined in the State's letter of January 14, 2005,
and that Ms. Perry's original attempt to serve Judges Fratto,
McFeeley and Orlando did not comply with Fed.R.Civ.P.
4(e)(1) and N.J. Ct. R. 4:4-3 because the documents were not
personally delivered to any of the judiciary defendants. On June
20, 2005, this Court dismissed Plaintiff's claims in this case as
to Defendants Hon. John A. Fratto, Hon. John McFeely and Hon.
Francis J. Orlando because Plaintiff failed to effect service of
the summons and complaint upon those defendants within 120 days
of the filing of her complaint and because good cause had not
been shown as to why service had not been effected. Perry v.
Hon. John A. Fratto, Et Al., Case No: 04-CV-6102 (FLW), Order
(D.N.J. June 20, 2005). Only her claims against Judge Bernardin
On July 14, 2005, Judge Bernardin filed the instant motion to
dismiss Plaintiff's claims against him. While Ms. Perry never
filed any opposition to the motion, on July 25, 2005, Ms. Perry
sent to the Court a copy of her "Resolution/Settlement Proposal
to Cherry Hill Township," which she labeled "Docket #04-6255,"
but in actuality pertains to this case against the judges. In her
proposal, Ms. Perry is seeking, among other things, an ordinance
"prohibit[ing] parking opposite residential driveways,"
"Termination of Judge Bernardin," "Diversity Training for all
Cherry Hill Township Municipal Court Judges," and "DAMAGES."
Facsimile from Victoria L. Perry to the Honorable Freda L.
Wolfson of July 25, 2005.
Although Plaintiff never filed a formal motion, she sent a fax
to this Court requesting that I recuse myself from this case and case 04-CV-6255. See
Facsimile from Victoria L. Perry to the Honorable Freda L.
Wolfson of July 27, 2005 (dated July 26, 2005). By way of opinion
dated August 18, 2005, which is hereby incorporated by reference,
I denied her request for my recusal.
A. Motion to Dismiss Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court accepts as true
all allegations in the Plaintiff's Complaint and all reasonable
inferences that can be drawn therefrom after construing them in
the light most favorable to the non-movant. Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). A pleading may be dismissed for "failure to state a claim
where it appears beyond doubt that no relief could be granted
under any set of facts which could be proved consistent with the
allegations." Hedenburg v. Bando American, Inc., 1992 WL
443432, at *4 (D.N.J. Mar.3, 1992) (citing Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984)). Courts are required when conducting the 12(b)(6) inquiry
to accept all well-pleaded allegations in the complaint as true
and to draw all reasonable inferences in favor of the non-moving
party. In re Rockefeller Ctr. Prop., Inc. Sec. Litig.,
311 F.3d 198, 215 (3d Cir. 2002). Nevertheless, legal conclusions offered
in the guise of factual allegations are given no presumption of
truthfulness. Chugh v. Western Inventory Services, Inc.,
333 F.Supp.2d 285, 289 (D.N.J. 2004) (citing Papasan v. Allain,
478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Therefore,
in ruling on a Rule 12(b)(6) motion, courts can and should reject
"legal conclusions," "unsupported conclusions," "unwarranted
references," "unwarranted deductions," "footless conclusions of law," and "sweeping legal conclusions in the form of actual
allegations." Morse v. Lower Merion School Dist., 132 F.3d 902,
907, n. 8 (3d Cir. 1997). Civil rights plaintiffs are not subject
to a heightened pleading requirement, but rather must only
contain a "short and plain statement" of the claim pursuant to
Fed.R.Civ.P. 8(a). Alston v. Parker, 363 F.3d 229, 233-34
(3d Cir. 2004).
On a motion to dismiss, the Court generally does not consider
documents extraneous to the pleadings, but the Court may consider
a "document integral or explicitly relied upon in the complaint . . .
without converting the motion to dismiss into one for summary
judgment." In re Burlington Coat Factory Secs. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997). Here, because Plaintiff refers in her
complaint to the numerous opinions and orders issued by various
courts in connection with these matters, this Court may consider
those opinions and orders without converting this Rule 12(b)(6)
motion into a motion for summary judgment. See id.
B. Claims Against Judge Bernardin
Plaintiff's allegations against the judges in this case are
based upon her misguided view that if a judge issues a ruling
that is adverse to her, that judge must be acting in a
conspirational and illegal manner. Notwithstanding her
litigiousness, Plaintiff simply has a distrust for the judicial
system, as evidenced by the fact that she has sued Judges Fratto,
McFeeley, Bernardin and Orlando, and the fact that she has sought
the recusal of the three different District Court judges assigned
to preside over her cases, Judges Orlofsky, Kugler and this
Court. Nonetheless, the Court has once again attempted to
categorize her allegations into discrete causes of action.
Judge Bernardin's name appears only in three of the twelve
counts contained within Plaintiff's complaint. Those counts are counts nine, ten and
eleven. In Count Nine, Plaintiff alleges: "The evidence shows
that Judge McFeely [sic] and Judge Fratto conspired with Judge
Francis J. Orlando, Jr. and Judge Daniel Bernardin to violate my
constitutional rights to due process and equal protection under
the law (Title 42 Sec. 1985), as well as violate my rights as
defined in Title 42 Section 1983." Am. Compl. ¶ 57. In Count Ten,
Plaintiff alleges that Judges Fratto, Orlando and McFeeley
violated 42 U.S.C. § 1986. Id. ¶¶ 63-65. Although she mentions
Judge Bernardin in Count Ten, she does not explicitly assert a §
1986 claim against him.
In Count Eleven, Plaintiff alleges that the four judges abused
judicial authority, maliciously used process, and "knowingly
conspired to violate [her] civil rights guaranteed by the federal
and State constitutions. Together these judges injured [her] by
engaging in judicial machinations to knowingly violate the basic
1st and 14th amendment rights of a person most vulnerable to
the legal system a single, Black American female by the name of
Victoria Perry." Id. ¶ 67. She further alleges that: "In all
ways, these Camden County Judges by acting outside their
jurisdiction denied [her] security against a White married
officer of the Court, did not view [her] to have equal protection
of law as a single woman, and trivialized a Black woman's
harassment claims against a White man as `frivolous' and as a
`vexatious litigant' whose constitutional rights to due process
were wantonly and outrageously violated state actors who are
required and appointed to protect [her]." Id. ¶ 68.
It is clear that Ms. Perry is asserting a § 1983 claim against
Judge Bernardin. To recover under 42 U.S.C. § 1983, a plaintiff
must show two elements: (1) a person deprived him or caused him
to be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Sample
v. Diecks, 885 F.2d 1099, 1107 (3d Cir. 1989). However, it is a
well-established principle that judges are absolutely immune from
suit for damages under § 1983. Moreover, the Third Circuit has
concluded as a matter of law that municipal court judges are
entitled to the protection of the doctrine of judicial immunity.
Figueroa v. Blackburn, 208 F.3d 435, 440-43 (3d Cir. 2000).
"[A] judge's immunity is overcome in only two sets of
circumstances. First, a judge is not immune from liability for
nonjudicial acts, i.e., actions not taken in the judge's judicial
capacity. Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all
jurisdiction." Id. at 443 (internal quotations omitted).
To circumvent the doctrine of judicial immunity, Ms. Perry
conclusorily alleges that the judges were "acting outside their
jurisdiction." See Am. Compl. ¶ 68. However, she pleads no
facts in support of her conclusion, and indeed her complaint
consists entirely of allegations regarding the actions taken by
the defendants in their judicial capacity. Specifically,
Plaintiff challenges the decision of Judge Bernardin to not make
a probable cause determination with regard to Ms. Perry's pending
Municipal Court complaints following Judge Fratto's ruling
barring pro se filings by Plaintiff in the state and
municipal courts. Even if Judge Bernardin's dismissal was in
error, it was nonetheless within his jurisdiction to order such a
dismissal based upon his understanding of the Order of the
Superior Court. Furthermore, Judge Bernardin left open the
possibility of a future decision, noting that Plaintiff could
make application to the Superior Court and that he "will await
direction from the Superior Court." See supra at 4. The
matter was never brought before Judge Bernardin again. Thus, any
recourse was by way of appeal, not a lawsuit for damages.
Furthermore, even if Judge Bernardin acted with malice it would not deprive him of jurisdiction and he remains immune from
suit. Figueroa, 208 F.3d at 443 (citing Stump v. Sparkman,
435 U.S. 349, 356-57 (1978) ("A judge will not be deprived of
immunity because the action he took is in error, was done
maliciously, or was in excess of his authority; rather, he will
be subject to liability only when he has acted in the clear
absence of all jurisdiction.")). Therefore, the Court finds that
Judge Bernardin is immune from suit under § 1983.
While Plaintiff asserts a claim pursuant to 42 U.S.C. § 1985,
Plaintiff does not specify in Count Nine which subsection of
42 U.S.C. § 1985 she believes Defendants to have violated. The Court
is also construing Count Eleven as asserting a claim pursuant to
42 U.S.C. § 1985. The second clause of 1985(2) has been
interpreted as applying to those conspiracies aimed at
obstructing justice in state courts, Kush v. Rutledge,
460 U.S. 719, 725 (1983), and addresses those conspiracies in which:
[T]wo or more persons conspire for the purpose of
impeding, hindering, obstructing, or defeating, in
any manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the
equal protection of the laws, or to injure him or his
property for lawfully enforcing, or attempting to
enforce, the right of any person, or class of
persons, to the equal protection of the laws.
42 U.S.C. § 1985(2).
A federal civil conspiracy claim under § 1985(3) requires that:
(1) two or more persons conspire to deprive any person of the
equal protection of the law; (2) one or more of the conspirators
performs or causes to be performed any overt act in furtherance
of the conspiracy; and (3) that overt act injures the plaintiff
in his person or property or deprives plaintiff of any right or
privilege of a citizen of the United States. Barnes Fdtn. v.
Township of Lower Merion, 242 F3d 151, 162 (3d Cir. 1971) (citations omitted). Therefore,
in order for a § 1985(2) or § 1985(3) claim against Judge
Bernardin to survive the instant motion to dismiss, Plaintiff
must adequately plead a conspiracy.
In New Jersey, a civil conspiracy is "a combination of two or
more persons acting in concert to commit an unlawful act, or to
commit a lawful act by unlawful means, the principal element of
which is an agreement between the parties to inflict a wrong
against or injury upon another, and an overt act that results in
damage." Morgan v. Union County Bd. of Chosen Freeholders,
268 N.J.Super. 337, 364, 633 A.2d 985 (App.Div. 1993), certif.
denied, 135 N.J. 468, 640 A.2d 850 (1994) (quoting Rotermund
v. U.S. Steel Corp., 474 F.2d 1139, 1145 (8th Cir. 1973)
(internal quotations omitted)). Plaintiff's complaint does not
allege an agreement involving Judge Bernardin. Nor does it
sufficiently allege any act or behavior that supports the
conclusion that Judge Bernardin participated in a conspiracy to
harm her. Rather, her allegations are so conclusory and
unsupported that, even when viewed at the motion to dismiss
stage, they fail support a claim of conspiracy because they
provide no grounds upon which the alleged conspiracy rests. See
In re Tower Air, Inc., No. 04-3633, 2005 WL 1813272, at * 5 (3d
Cir. Aug. 3, 2005). Therefore, Plaintiff's claims against Judge
Bernardin pursuant to 42 U.S.C § 1985 are dismissed.
Furthermore, to the extent that Plaintiff attempted to plead a
claim against Judge Bernardin pursuant to 42 U.S.C. § 1986, that
claim must also be dismissed, because Section 1986 is expressly
conditioned upon the existence of a Section 1985 conspiracy which
is about to occur. Moore v. Trump Casino Hotel, No. 86-811,
1986 WL 25427, at *2 (D.N.J. Apr. 28,1986) (citing Dowsey v.
Wilkins, 467 F.2d 1022, 1026 (5th Cir. 1972); Armstrong v.
School District, 597 F.Supp. 1309, 1314 (E.D.Pa. 1984)). The failure to establish any
right to relief under 42 U.S.C. § 1985 justifies the dismissal of
the dependent cause of action under 42 U.S.C. § 1986. Id.
Therefore, all of Plaintiff's claims against Judge Bernardin
warrant dismissal and Judge Bernardin's motion to dismiss is
For the reasons stated above, Judge Bernardin's motion to
dismiss is granted. An appropriate order will follow.