United States District Court, D. New Jersey
TOMMIE H. TELFAIR, Plaintiff,
JOHN POST, et al., Defendants.
Telfair, Plaintiff Pro Se
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
B. SIMANDLE U.S. DISTRICT JUDGE
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).
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.
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.
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.
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
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.
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.
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(b)
(2017). See also 28 U.S.C. §
Petitioner named three judges of this Court defendants in his
complaint, Judge Esther Salas, Judge Patty Shwartz,
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.
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.
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.
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.). 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. All claims against the judicial defendants
will be dismissed with prejudice.
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.
Propriety of Removal
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.
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. 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).
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.
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.
Motion to Dismiss
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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
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.
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 ...