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Telfair v. Post

United States District Court, D. New Jersey

June 20, 2018

TOMMIE H. TELFAIR, Plaintiff,
v.
JOHN POST, et al., Defendants.

          Tommie Telfair, Plaintiff Pro Se

          Craig Carpenito, United States Attorney Daniel J. Gibbons, Assistant United States Attorney Office of the United States Attorney Attorneys for John Post, Gregory Hilton, and Matthew Greimal

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is a motion to dismiss Plaintiff Tommie Telfair's (“Plaintiff”) civil rights complaint filed by defendants John Post, Gregory Hilton, and Matthew Greimal. Telfair is an inmate presently confined at FCI Fort Dix, New Jersey, serving a sentence of imprisonment imposed upon convictions in the District of New Jersey in United States v. Telfair, Cr. No. 08-0757 (DMC), aff'd App. No. 11-3456 (3d Cir. Dec. 12, 2012). Defendants removed the complaint from state court and now move to dismiss it under Federal Rule of Civil Procedure 12(b)(6). Motion to Dismiss, Docket Entry 4. They further argue that Plaintiff is precluded from filing his claims based on an order entered by former Chief Judge Brown in one of Plaintiff's prior civil actions. See Telfair v. Office of the U.S. Attorney, No. 10-2958 (D.N.J. administratively terminated Dec. 14, 2011).

         However, there are two issues the Court must determine before it can decide the motion to dismiss. First, it must determine whether it must recuse itself from this lawsuit as Plaintiff has named three judges of this District as defendants. If recusal is not required, it must next determine whether the suit was properly removed from state court as Plaintiff has objected to removal and requests a remand to state court. Only after deciding these two issues may the Court consider the motion to dismiss.

         If the case was properly removed, the Court has an independent obligation to screen complaints filed by prisoners “seek[ing] redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A. This section makes no distinction between complaints filed in federal court or those filed in state court and removed to federal court. Thus, the Court must also consider whether the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted against the other defendants named in the complaint.

         II. BACKGROUND

         Plaintiff filed a complaint in the New Jersey Superior Court, Law Division, Essex County alleging constitutional violations by various state and federal officials including defendants Post, Hilton, and Greimal, who are agents with the Drug Enforcement Administration (“DEA”), Mario Recinos, Joseph Thompson, John Disanto, Michael Pedicini, Antonio Rodriguez, Wilfredo Perez, John Azzarello, Pablo Gonzalez, Erica Silva, J. Ortiz, L. Corino, Ferrerina, B. Homes, the State of New Jersey, James Kimball, Craig Ford, Carlos Antigua, Carlito Antigua, United States District Judge Esther Salas, Judge Patty Shwartz, former United States District Judge Dennis Cavanaugh, Joseph N. Minish, Paul B. Matey, and Brian L. Urbano. He also names 1-50 unknown local, state, and government officials; 1-50 unknown defendants acting under color of law; and 1-50 unknown law enforcement defendants. Parties ¶¶ 7-9. The following factual allegations are taken from the complaint and are accepted for purposes of this screening only. The Court has made no findings as to the truth of Plaintiff's allegations.

         Plaintiff alleges he was “kidnapped, human trafficked, expatriated, forced into involuntary servitude labor and exiled from the state of New Jersey's personal jurisdiction” on January 23, 2007. Complaint ¶ 1. He states he received a phone call from a family member asking about meeting Plaintiff at the hospital where Plaintiff was going to have his back and hand examined. Id. ¶ 3. Before Plaintiff could leave for the hospital, DEA Agent Post arrived at Plaintiff's location and told Plaintiff to come with him. Id. ¶¶ 4-5. Post handcuffed Plaintiff, causing further injury to Plaintiff's hand in the process. Id. ¶ 5. Post and other DEA agents then “executed an unlawful intrusion upon the property.” Id. Post then attempted to get Plaintiff to wear a wire and become an informant, but Plaintiff refused. Id. ¶ 6. Post allegedly started threatening Plaintiff's family members after Plaintiff refused to become his informant. Id. Post and the other agents then allegedly began placing Plaintiff's personal belongings into their van, all the while threatening Plaintiff. Id. ¶ 7. Post and the other agents allegedly forced Plaintiff into their van. Id. Post continued to tell Plaintiff that he would “kidnap” Catrina Gatling, stating that unless Plaintiff “admit[ted] to the crimes or [became] an informant, she's getting picked up.” Id.

         Plaintiff claims that the DEA agents took Plaintiff to a secret location in order to force him to become their informant using his medical condition and Ms. Gatling as leverage. Id. ¶ 8. Plaintiff asked for an attorney and told the agents that his and Ms. Gatling's children would be waiting for her, but Post said “f**k your wife and kids, you should have thought of them.” Id. Plaintiff alleges the agents engaged in a variety of offenses, including fabrication of crime scene evidence, bribing of confidential witnesses to fabricate evidence against Plaintiff, threats against Plaintiff, using Plaintiff's cell phone and car, pretending to be Plaintiff's cousin while engaging in illegal activities, fabricating phone records to use at trial, withholding discovery material, falsely telling the jury Plaintiff confessed to the crimes, and holding Plaintiff out to be a drug dealer. Id. ¶ 9. The agents allegedly would not permit Plaintiff to call an attorney, saying that Ms. Gatling would go to jail if they had to stop questioning Plaintiff. Id. ¶ 10. Plaintiff alleges Ms. Gatling signed a plea agreement in order to avoid a long prison sentence that could cost her custody of her children. Id.

         Plaintiff alleges he and Ms. Gatling lost their careers, homes, businesses, and other property, and have been wrongfully incarcerated as a result of defendants' unlawful actions. He seeks monetary damages from all defendants and injunctive relief in the form of “an injunctive order enjoining and prohibiting the continual captivity, control, unlawfully obtained personal jurisdiction being exercised upon Plaintiff[‘s] life, liberty, and property. . . .” Relief ¶ 8.

         III. ANALYSIS

         A. Recusal

         “When a judge or judicial nominee is named as a defendant and his credibility or personal or financial interests are at issue, all judges of the same district should recuse, unless the litigation is patently frivolous or judicial immunity is clearly applicable.” Judicial Conference of the United States, Committee on Code of Conduct for United States Judges, Compendium of Selected Opinions § 3.6-6[1](b) (2017). See also 28 U.S.C. § 455.

         Because Petitioner named three judges of this Court defendants in his complaint, Judge Esther Salas, Judge Patty Shwartz, [1] and former Judge Dennis Cavanaugh, this matter was reallocated from the Newark Vicinage to the Camden Vicinage pursuant to this Court's January 13, 1994 Standing Order which requires that, in all cases where a judge of this Court is named as a party, the matter shall be assigned to a judge sitting in a different vicinage of this Court than the one in which the named judge sits. Judges Shwartz and Salas sit in Newark, as did Judge Cavanaugh prior to his retirement. Pursuant to § 3.6-6 and the standing order, this Court need not recuse if the assigned judge determines the matter to be patently frivolous or if judicial immunity is plainly applicable, but the Court must request designation of a judge from outside of this District pursuant to 28 U.S.C. § 292(b) in the event the matter is neither frivolous nor subject to judicial immunity. This is a specific application of the broader ethical requirement that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).[2]

         The Court finds that Plaintiff's claims against the judicial defendants are clearly barred by judicial immunity. “It is a well-settled principle of law that judges are generally 'immune from a suit for money damages.'” Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (quoting Mireles v. Waco, 502 U.S. at 11, 9, 112 S.Ct. 286 (1991)). “A judge will not be deprived of immunity because the action he [or she] took was in error, was done maliciously, or was in excess of his [or her] authority.” Stump v. Sparkman, 435 U.S. 349, 356 (1978); see also Gallas v. Supreme Court of Pa., 211 F.3d 760, 769 (3d Cir. 2000) (“[I]mmunity will not be lost merely because the judge's action is ‘unfair' or controversial.”). “A judge is absolutely immune from liability for his [or her] judicial acts even if his [or her] exercise of authority is flawed by the commission of grave procedural errors.” Stump, 435 U.S. at 359.

         “[Judicial] immunity is overcome in only two sets of circumstances.” Mireles, 502 U.S. at 11. “First, a judge is not immune from liability for nonjudicial acts, i.e., actions not taken in the judge's judicial capacity.” Id. In determining whether an act qualifies as a “judicial act, ” courts look to “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectation of the parties, i.e., whether they dealt with the judge in his [or her] judicial capacity.” Stump, 435 U.S. at 362. “Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.

         Plaintiff's claims against the judicial defendants arise from his criminal proceedings, United States v. Telfair, Mag. No. 06-3133, and Crim Nos. 07-0272 and 08-757 (D.N.J.).[3] He alleges the judicial defendants permitted false evidence to be introduced at trial, abused their government power and authority, and generally breached their constitutional duties towards Plaintiff. Complaint § E (8). Plaintiff's allegations of bad faith and conspiracy do not deprive the judicial defendants of their immunity as judicial immunity is not overcome by allegations of bad faith or malice. Mireles, 502 U.S. at 11. As Plaintiff's complaint concerns the judicial defendants' actions in their judicial capacities as magistrate and district judges during Plaintiff's criminal proceedings, they are absolutely immune from suit.[4] All claims against the judicial defendants will be dismissed with prejudice.

         Because judicial immunity is clearly applicable to the claims raised in Plaintiff's complaint, Compendium § 3.6-6 and the Standing Order of January 13, 1994 do not require recusal.

         B. Propriety of Removal

         On April 9, 2018, Plaintiff filed a document captioned “Petition for Dismissal of Stranger's Filings in the Civil Suit of Citizen Tommie H. Telfair for Want of Jurisdiction Ab Initio.” The Court considers this a motion for a remand back to the state court. Motion to Remand, Docket Entry 3. Plaintiff asserts removal was improper because counsel for defendants is not a defendant in the civil action and has not made an appearance in the Superior Court of New Jersey. Id. at 3. He further argues the state court had never issued summonses in connection with his suit and that defendants were never properly served with the complaint. Id. Finally, he argues the Court lacks subject matter jurisdiction over the complaint because there is no case or controversy present. Id. at 3-4.[5]

         Plaintiff's motion to remand is without merit. The United States Attorney removed this matter from the state court under 28 U.S.C. § 2679, “which provides that once the Attorney General certifies that the employee-defendant was acting within the scope of his employment with the United States, ‘any civil action or proceeding commenced upon such claim in a State Court shall be removed without bond at any time before trial'” to the appropriate district court. Rivera-Carrion v. Miranda, 529 F.Supp.2d 296, 298 (D.P.R. 2008) (quoting 28 U.S.C. § 2679(d)(2)) (emphasis omitted). The Civil Division Chief of the U.S. Attorney's Office for the District of New Jersey has certified Post, Hilton, and Greimal were acting in the scope of their employment when the incidents giving rise to Plaintiff's complaint occurred.[6] Removal was therefore proper under § 2679 as the complaint was removed prior to trial in the state court. See also Thompson v. Wheeler, 898 F.2d 406, 409 (3d Cir. 1990).

         The Court has subject matter jurisdiction over the complaint because Plaintiff raises claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and the United States Constitution. “[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1). This Court therefore has exclusive jurisdiction over Plaintiff's FTCA claims.

         Plaintiff's motion for a remand back to the state court is denied without prejudice as the complaint was properly removed under 28 U.S.C. § 2679, and the Court has subject matter jurisdiction over the complaint. If all federal claims are adjudicated with finality, then Plaintiff may apply to have his then-remaining state law claims against state officials remanded to the Superior Court of New Jersey. Because Plaintiff is being given the opportunity to attempt to amend certain federal claims over which this Court would have federal question jurisdiction, remand at this present time would be premature.

         C. Motion to Dismiss

         Having concluded recusal is not required and that the matter was properly removed to federal court, the Court will now address Defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Defendants argue the complaint is barred by res judicata and is a violation of an order of preclusion issued by former Chief Judge Garrett Brown in one of Plaintiff's prior civil matters.

         When considering a motion to dismiss a complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations, ” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks omitted). “[A] complaint's allegations of historical fact continue to enjoy a highly favorable standard of review at the motion-to-dismiss stage of proceedings.” Id. at 790.

         1. Estoppel

         Defendants argue the claims raised in the complaint are barred by the doctrines of claim and issue preclusion as “the claims and issues sought to be precluded are the same involved in the prior criminal proceeding, including the constitutionality of his arrest, interrogation and prosecution, and litigation in his post-conviction actions, and arise from the same set of facts, i.e., Telfair's arrest, interrogation and conviction for heroin dealing.” Motion at 18. Defendants argue that these “claims and issues were actually ...


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