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Fink v. United States

United States District Court, D. New Jersey

June 3, 2019

JOHN W. FINK,, Plaintiff,
v.
UNITED STATES OF AMERICA, J. PHILIP KIRCHNER and FLASTER/GREENBERG P.C., Defendants.

          OPINION

          KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE

         The clerk referred this case to me for review pursuant to D.N.J. Loc. Civ. R. 41(g).[1] That Local Rule essentially requires that, where a sitting judge has been sued, a second judge in a separate vicinage shall review the allegations. If judicial immunity is a complete defense or the allegations are found to be patently frivolous, then the action shall be dismissed against the original judge. In such a case, there is no need for recusal or for referral of the case to a separate district.

         Background

         The plaintiff, John W. Fink, pro se, filed a legal malpractice case against his prior attorneys, defendants J. Philip Kirchner and Flaster/Greenberg P.C. That case was heard by the Hon. Noel L. Hillman, a district judge of this court. Fink v. Kirchner, Civ. No. 12-4125-NLH-KMW (the "Malpractice Action"). Judge Hillman granted summary judgment for the defendants. (12cv4125 DE). Mr. Fink appealed; the U.S. Court of Appeals for the Third Circuit affirmed, see 731 Fed.Appx. 157 (3d Cir. 2018); and the U.S. Supreme Court denied certiorari.

         Mr. Fink has now filed the above-captioned action. The caption of the Complaint names as defendants J. Philip Kirchner and Flaster/Greenberg P.C, who are also named as the defendants in the initial paragraph of the Complaint. Those defendants have filed a motion to dismiss. (DE 3)

         The body of the Complaint, however, appears to be directed at Judge Hillman, as well as the three judges of the United States Court of Appeals for the Third Circuit who were assigned to Mr. Fink's unsuccessful appeal.

(a) Count I, entitled "Judge Hillman committed a fraud upon the Court," alleges that Judge Hillman committed fraud when he rendered various judicial decisions unfavorable to plaintiff in the Malpractice Action.
(b) Count II, entitled "CA Judges committed a fraud upon the Court," alleges that three Judges of the U.S. Court of Appeals for the Third Circuit, Hon. Patty Shwartz, Hon. Cheryl Ann Krause, and Hon. D. Michael Fisher, committed fraud when they affirmed Judge Hillman's grant of summary judgment for defendants.

         The Complaint demands the following relief:

a) Reversal of the summary judgment decisions granted to the defendants;
b) Remand of the [the Malpractice Action] to the District Court for trial;
c) Grant Fink permission to use the entire investigator's report, but if not that, then at least the Kirchner May 20th Letter; and
d) Any other relief this court deems equitable and just under the circumstances;

         The Clerk considered this pleading, although confusing, to be tantamount to an action against District Judge Hillman, and therefore randomly referred it to me pursuant to Loc. Civ. R. 41(g). I remained unclear as to what was intended, however.

         On April 26, 2019, I therefore filed an Order (DE 6) that by May 15, 2019, the plaintiff, John W. Fink, shall "SHOW CAUSE IN WRITING

1. Stating and clarifying whom he intends to name as defendants in the complaint;
2. Stating why this action should not be dismissed by filing a brief in opposition to the motion to dismiss filed by defendants Kirchner and Flaster/Greenberg P.C.;
3. Stating why the claims against Judge Hillman and the Third Circuit judges (assuming that is what is intended) are not barred by judicial or sovereign immunity, or otherwise dismissable for failure to state a claim that is not patently frivolous. See D.N.J. Loc, Civ. R. 41(g)."

         Mr. Fink responded by filing an "Amended Complaint." ("AC", DE 7) As regards the four judicial officers, it is similar to the original complaint, except that it adds the United States of America as a defendant. By way of explanation, the introduction to die Amended Complaint states that "[t]his is an action filed against the United States for the judicial fraud on the court committed by its employees [listing Judges Hillman, Shwartz, Krause, and Smith]." (AC ¶ 1) In the two substantive counts, the initial reference to each of the judges is now followed by "an employee of the United States" or "employees of the United States." (See AC Count I ¶ 2, Count II ¶ 16.)

         The Amended Complaint adds claims for compensatory and punitive damages. The demands for reversal of summary judgment, admission of certain exhibits, and trial of the matter are now phrased solely as alternative relief in ...


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