United States District Court, D. New Jersey
JOHN E. REARDON, Plaintiff,
STATE OF NEW JERSEY, et al., Defendants.
JOHN E. REARDON, BERLIN, NJ, Pro Se Plaintiff.
BRIAN P. WILSON, STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, DIVISION OF LAW, TRENTON, NJ, Attorney for Defendants State of New Jersey, the Hon. Victor Ashrafi, J.A.D., the Hon. Margaret M. Hayden, J.A.D., the Hon. Edith K. Payne, J.S.C., the Hon. Anthony M. Pugliese, J.S.C. and the Hon. Ronald J. Freeman, J.S.C. (retired).
NOEL L. HILLMAN, District Judge.
Before the Court is a motion to dismiss filed by defendants the State of New Jersey, the Hon. Victor Ashrafi, J.A.D., the Hon. Margaret M. Hayden, J.A.D., the Hon. Edith K. Payne, J.S.C., the Hon. Anthony M. Pugliese, J.S.C. and the Hon. Ronald J. Freeman, J.S.C. (retired) (collectively "State defendants"). Also before the Court is plaintiff's motion for leave to amend his complaint. For the reasons that follow, the defendants' motion will be granted and the plaintiff's motion will be denied.
I. FACUTUAL AND PROCEDURAL BACKGROUND
Plaintiff was convicted in 1992 in the State of New Jersey for (1) third-degree possession of a destructive device in violation of N.J. STAT. ANN. 2C:39-3(a); (2) second-degree possession of explosive material with intent to use it against another in violation of N.J. STAT. ANN. 2C:39-4(b); and (3) second-degree possession of a destructive device with the intent to use it against another in violation of N.J. STAT. ANN. 2C:39-4(c).
Following his 1992 conviction, plaintiff appealed and Judges Payne and Hayden of the Superior Court of New Jersey, Appellate Division, affirmed. See State v. Reardon, 2012 WL 10800, at *1-2 (N.J.Super.Ct.App. Div. Jan. 4, 2012). On October 1, 2009, plaintiff filed a petition for post-conviction relief in the New Jersey Superior Court. Id . By Order dated August 20, 2010, Judge Pugliese denied plaintiff's motion. Id . On January 4, 2012, the Superior Court, Appellate Division, affirmed, on grounds that plaintiff's petition was untimely, that his arguments were barred because they were previously litigated and that his arguments lacked merit. Id. at *3-4.
Plaintiff then filed a complaint before this Court alleging that his 1992 conviction and subsequent denial of his post-conviction relief (PCR) petition were unconstitutional. Plaintiff states that he is not asking this Court "to set aside his conviction" but rather he asks the Court to find his conviction unconstitutional and enjoin the enforcement of the conviction.
The State defendants move to dismiss plaintiff's complaint. In response, plaintiff moves to amend his complaint.
II. STANDARDS FOR MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) and (6)
The State defendants argue that plaintiff's claims are absolutely barred by the doctrine of Eleventh Amendment sovereign immunity. As plead, Eleventh Amendment immunity is a challenge to this Court's subject matter jurisdiction and, therefore, is determined pursuant to Fed.R.Civ.P. 12(b)(1). Gould Elecs., Inc. v. United States , 220 F.3d 169, 178 (3d Cir. 2000). Rule 12(b)(1) motions are either facial or factual challenges. CNA v. United States , 535 F.3d 132, 140 (3d Cir. 2008). A facial attack concerns the sufficiency of the pleadings, whereas a factual attack is a dispute over the existence of certain jurisdictional facts alleged by the plaintiff. Id . (citing United States ex rel. Atkinson v. Pa. Shipbuilding Co. , 473 F.3d 506, 514 (3d Cir. 2007)).
In deciding a motion that attacks the complaint on its face, the court must accept the allegations in the complaint as true. Mortensen , 549 F.2d at 891; Gould Elecs. , 220 F.3d at 176 ("In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.")
If the motion attacks the facts supporting jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Sav. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). The plaintiff will have the burden of proof that jurisdiction does in fact exist. Id.
Here, the State defendants are making a facial attack that plaintiff's claims are barred by sovereign immunity and, therefore, the Court accepts the ...