Opinion
Civil Action No. 03-2032 (JBS).
Filed: September 16, 2004
Mr. Warren Only, Vineland, NJ, Plaintiff pro se.
Peter C. Harvey, Attorney General of New Jersey, By: Melanie L. Armstrong, D.A.G. Office of the Attorney General, Richard J. Hughes Justice Complex Trenton, NJ, Attorney for Defendants State of New Jersey, Department of Law and Public Safety, New Jersey Division of State Police, Carl A. Williams, Carson Dunbar Jr., Frederick Madden, Superintendent Joseph Fuentes, Lt. Colonel Juan Mattos, Captain Michael Penyak, Trooper Ray Ortiz, Division of Criminal Justice, David Samson, Attorney General Peter C. Harvey, Vaughn McKoy, Lori Linsky, Joseph Trapp, and Division of State Police — Intelligence Section
and
Joseph M. Scott, Esq., BARKER, DOUGLASS SCOTT, PC Linwood, NJ, Attorney for Defendants City of Vineland, Perry Barse Mayor, City of Vineland Police Department, Mario R. Brunetta, Jr., Chief of Police, John P. Gallo, Former Director of Police, James Larro, Director of Police, City of Vineland Municipal Court, John Kasper Esquire, individually and as Judge, and Dolores Middleton, Director of Court
OPINION
This matter comes before the Court upon the motion to dismiss of Defendants Mayor Perry Barse; Chief of Police Mario R. Brunetta Jr.; John P. Gallo, Former Director of Police; James Larro, Director of Police; John Kasper Esq., individually and as Judge; and Dolores Middleton, Director of Court (hereinafter "Vineland Defendants"). Also before the Court is Plaintiff Only's application for sanctions against Defendants' counsel and the motion to dismiss of Defendants the State of New Jersey, Department of Law and Public Safety, New Jersey Division of State Police; Carl A. Williams; Carson Dunbar, Jr.; Frederick Madden; Superintendent Joseph Fuentes; Lt. Colonel Juan Mattos; Captain Michael Penyak; Trooper Ray Ortiz; Division of Criminal Justice; David Samson; Attorney General Peter C. Harvey; Vaughn McKoy; Lori Linsky; Joseph Trapp; and Division of State Police — Intelligence Sections (hereinafter "State Defendants"). Mr. Only has not filed any opposition to the State Defendants' motion. For the reasons discussed herein, the motions to dismiss of both the Vineland Defendants and the State Defendants will be granted and Plaintiff's motion for sanctions will be denied.
I. BACKGROUND
A. Procedural History
The Complaint in this matter was filed on May 13, 2003 and an Amended Complaint was filed on September 22, 2003. Plaintiff prepared a service of process form for the City of Vineland, City of Vineland Police Department and City of Vineland Municipal Court for service of the First Amendment to the Complaint to be made by the U.S. Marshal's Service. A motion extending time pursuant to Fed.R.Civ.P. 6(b) was filed by Thomas Farnoly, Esq., on behalf of the City of Vineland only on October 24, 2003, which this Court granted on November 6, 2003. This Court's November 6, 2003 Order also denied Plaintiff's motion for default judgment as to Defendant, City of Vineland.
On March 31, 2004, the State Defendants filed a motion to Answer or otherwise reply out of time. Magistrate Judge Ann Marie Donio granted this motion on June 22, 2004. On April 1, 2004, this Court extended the time to answer for the Vineland Defendants and dismissed the City of Vineland, City of Vineland Police Department and City of Vineland Municipal Court from this action. On April 9, 2004, the Vineland Defendants filed their motion to dismiss. Plaintiff subsequently filed a motion for sanctions on April 26, 2004. Finally, the State Defendants filed their motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), on July 8, 2004.
B. Nature of the Complaint
Plaintiff brings this action, alleging violations of 42 U.S.C. § 2000a et seq., 42 U.S.C. § 2000a-1, 42 U.S.C. § 2000a-2(a), (b), (c), 42 U.S.C. § 14141 (Omnibus Crime Control and Safe Streets Act), 42 U.S.C. § 3789d(c), 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1981 of the Civil Rights Act to "remedy a pattern or practice of intentional repeated racially motivated discriminatory conduct or segregation in places of public accommodation by law enforcement officers of the Division of State Police, New Jersey Department of Public Safety, Division of Criminal Justice, City of Vineland Police Department, City of Vineland Municipal Court, County of Cumberland, Cumberland County Human Relations Commission, that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, including the First and Fourteenth Amendments and rights protected by the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d, 42 U.S.C. § 1983 et seq., and 42 U.S.C. § 1985 civil rights act, that the said defendants upon proper notice did intentionally and wrongfully neglect to prevent the acts committed within meaning of 42 U.S.C. § 1986." (Plaintiff's Amended Complaint).
Plaintiff, who is African-American, alleges that as early as 1996 and continuing through the year 2003, he detected and reported "major criminal activities to state and federal law enforcement agencies of various illegal conduct and operations in Cumberland County leading it back to the sources, that these sources led back to foreign countries with contacts in New Jersey immediately following the systematic theft of my aircraft type led to a drug trafficking operation." (Amended Compl. ¶ 14). Plaintiff claims that in the course of his reporting these alleged criminal activities, he became the victim of harassment, induced by a police officer of Vineland Police Department. (Id. at ¶ 15). Plaintiff also alleges that he was kept under unwarranted surveillance by state police officers, in an attempt to harass and retaliate against him for reporting criminal misconduct. (Id. at ¶¶ 16-17). Plaintiff contends that on May 8, 2000 Vineland Police Officers were sent to his home for the purpose of committing a bodily or deadly assault on him to "strike fear into plaintiff or discourage plaintiff from ever calling the police again." (Id. at ¶ 20). A second such attempted assault is alleged to have occurred in September 2001. (Id. at ¶ 22). Plaintiff asserts that "these continued acts stalking plaintiff with surveillance was state-wide on the highways, and traveling using state officers and New Jersey Transit Police Officers while using public transportation to spy and block plaintiff from enforcing any of his cases." (Id. at ¶ 22a).
II. DISCUSSION
Both the Vineland Defendants and the State Defendants bring motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim.Markowitz, 906 F.2d at 103. Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint matter, are taken into consideration.Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
A. Vineland Defendants' Motion to Dismiss
1. Time-Barring of Claims
Plaintiff has filed suit alleging violations of 42 U.S.C. § 2000a et seq.; 42 U.S.C. § 2000a-1; 42 U.S.C. § 2000a-2(a), (b), (c); 42 U.S.C. § 14141; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1986; and 42 U.S.C. § 3789. These claims can be classified as involving civil rights. "It is now settled law that the Statute of Limitations to be applied in federal civil rights actions is 'the most appropriate (statute of limitations) provided by state law.'" Johnson v. Railway Express Agency, 421 U.S. 454 (1975). The New Jersey Supreme Court has held that the applicable statute of limitations period for discrimination matters is two years, similar to personal injury claims. See Montells v. Haynes, 627 A.2d 654 (N.J. 1983).
Plaintiff alleges that on May 8, 2000, State Trooper Ortiz sent Vineland police officers to the Plaintiff's residence for the purpose of committing a bodily or deadly assault on him. (See Amended Compl. ¶ 20). The statute of limitations on that alleged violation ran on May 8, 2002. As Plaintiff failed to bring the cause of action within two years from the date of its accrual, the claim must be dismissed.
Plaintiff also alleges in paragraph thirty-eight of the Amended Complaint that on April 6, 2000 he was assaulted. Again, the statute of limitations for that alleged violation ran on April 6, 2002 and therefore that claim must also be dismissed against the moving Defendants.
In paragraph thirty-nine, Plaintiff alleges that on March 29, 2000, a "bogus bench warrant scheme" was discovered involving a Vineland officer and the City of Vineland. Plaintiff had until March 29, 2002 to file suit on that claim, did not do so, and thus the claim must be dismissed.
Finally, Plaintiff alleges that he has not been able to pursue causes of action entitled Warren Only v. City of Millville, 98-cv-4103, Warren Only v. United States, L-9175-01, andWarren Only v. City of Vineland, 01-cv-1884. As Defendants have no control over the federal court and its docket, these claims must be dismissed as well.
Plaintiff opposes dismissal of these claims based on the statute of limitations having run, claiming that he alleges an ongoing pattern and practice. Plaintiff, however, has not come forward with facts to allege what occurred within the two year statute of limitations period so that he is able to present a cause of action. The Plaintiff's cause of action appears to have arisen in 2000, when Mr. Only was arrested as a result of an outstanding warrant. Plaintiff's causes of action therefore should have been brought at the latest by 2002 and, because they were not raised until 2003, are time-barred. It is noteworthy that Plaintiff has described no conduct by these Defendants occurring within two years prior to filing the Complaint, whether in the Complaint, the Amended Complaint, or the opposition to this motion.
2. Plaintiff's 42 U.S.C. § 3789 Claim
Plaintiff alleges a cause of action under 42 U.S.C. § 3789 against the moving Defendants. 42 U.S.C. § 3789 states:
Title to personal property — Notwithstanding any other provision of law, title to all expendable and nonexpendable personal property purchased with funds made available under this chapter, including such property purchased with funds made available under this chapter as in effect before October 12, 1984, shall vest in the criminal justice agency or nonprofit organization that purchased the property if it certifies to the State office described in section 3757 or 3796aa-7 of this title, as the case may be, that it will use the property for criminal justice purposes. If such certification is not made, title to the property shall vest in the State office, which shall seek to have the property used for criminal justice purposes elsewhere in the State prior to using it or disposing of it in any other manner.42 U.S.C. § 3789. 42 U.S.C. § 3789 is an administrative provision pertaining to title to personal property. Plaintiff has not specified what personal property of his would fall under this Act.
Plaintiff responds that he is pursuing a claim under 42 U.S.C. § 3789d(C). The Third Circuit has stated in United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir. 1981), that some such cases cause "public officials, policemen and citizens alike considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation. . . ." Id. Here, Plaintiff's allegations in the Amended Complaint are vague, conclusory and fail to set forth any fact showing a nexus between the alleged acts of racial discrimination and the named Defendants or between the expenditure of federal funds and the incidences of police abuse. The Complaint fails to indicate how the City of Vineland practiced discrimination. The Complaint neither provides fair notice of the Plaintiff's claims, nor the grounds upon which they are based. Plaintiff has therefore failed to state a cause of action and this claim will be dismissed.
3. Lack of Standing for Suit under 42 U.S.C. § 14141
Plaintiff also alleges violations of 42 U.S.C. § 14141 et seq. That section states:
(a) Unlawful conduct
It shall be unlawful for any government authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern of practice.
As set forth in sub-paragraph (b) of § 14141, civil causes of action to obtain appropriate, equitable and declaratory remedies to eliminate a pattern or practice are to be brought by the Attorney General only after he has reasonable cause to believe that a violation of paragraph (1) has occurred. As standing to sue lies only with the Attorney General, Plaintiff lacks standing and this claim must be dismissed.
B. State Defendants' Motion to Dismiss
1. Eleventh Amendment Immunity
It is well-established that a federal cause of action for money damages cannot be maintained against either a state, an agency of that state, or a state official, in their official capacity.Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978). The prohibition against naming a state, state agency, or official as a party derives from the Eleventh Amendment of the United States Constitution:
[T]he judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of any foreign state.
The Eleventh Amendment precludes federal jurisdiction over a state absent the state's consent to suit. Pennshurst State School and Hosp. v. Halderman, 465 U.S. 89, 99 (1984). Such immunity extends to agencies, departments, and officials of the state when the state is considered to be the real party in interest. Id. at 102. The state is considered to be the real party in interest whenever "'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration'" or "if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" College Savings Bank v. United States of America, 948 F. Supp. 400, 409 (D.N.J. 1996) (quoting Halderman, 465 U.S. at 101, n. 11).
It appears, from the Amended Complaint, that Plaintiff intended to sue the individually named Defendants only in their official capacities. The one sole exception is Defendant Ray Ortiz, for whom Plaintiff makes a specific designation of "individual and official capacity." For all other named Defendants, Plaintiff specifically sets forth the position of each.
Here, the real party at interest is the State of New Jersey, as Plaintiff has sued the State of New Jersey, several of the State's agencies, and several of its officials. Any damages awarded to Plaintiff will be taken from state funds and the State of New Jersey has not consented to suit. Thus, all claims against the State Defendants, including all state officials sued in their official capacities will be dismissed.
Plaintiff also brings suit against the State Defendants under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Liability, under this statute, is limited to "persons" within the meaning of that section. In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), the Supreme Court held that a State, including its agencies or an official of the State acting in his official capacity, is not a "person" within the meaning of 42 U.S.C. § 1983.
In an effort to prevent plaintiffs from circumventing Congressional intent by bringing suit against state officials rather than the state itself, the Court in Will held that state officials are not "persons." Id. at 71. Although state officials are literally persons, a suit against a state official in his official capacity is not a suit against the official, but a suit against the official's office. "As such, it is no different from a suit against the State itself." Id. The Supreme Court has firmly concluded that Congress did not intend that the Civil Rights Act would create a cause of action against state or officials of the state, in federal or state court. Therefore, the individual named Defendants, in their official capacities, are officials of the State of New Jersey, therefore not "persons" for purposes of § 1983, and cannot be sued under this statute.
Moreover, Plaintiff's Complaint fails to demonstrate that the individual State Defendants are liable under 42 U.S.C. § 1983, as he does not plead the requisite personal involvement needed for the individual Defendants to be held accountable. It is well settled that to state a claim under § 1983, a Plaintiff must allege a deprivation of a right "secured by the Constitution and laws of the United States" resulting from the conduct of a person acting under color of state law. Paratt v. Taylor, 451 U.S. 527 (1981). In order to state a claim against a Defendant for which relief may be granted, a plaintiff must allege some personal involvement in the alleged constitutional deprivation. Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988). Moreover, the Third Circuit Court of Appeals has stated that "[i]t is clear from the statute's express language that, like federal habeas corpus in this respect, a civil rights complaint must portray specific conduct by state officials which violates some constitutional right of the complainant in order to state a claim for relief." Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970) (emphasis added).
Plaintiff sets forth only a litany of failures to act, not specifically attributed to any particular named Defendant. Plaintiff merely sets forth the titles of the individual State Defendants without, at any time, alleging the specific activities of each that deprived Plaintiff of his constitutional and civil rights. Plaintiff's § 1983 claim against these Defendants therefore must be dismissed.
3. Failure to State Claims Against Certain Defendants
Plaintiff names several State Defendants in the caption of his Complaint, but fails to set forth allegations against these individuals. A reading of the Complaint reveals that Plaintiff sets forth only vague allegations against the Division of State Police, Division of Criminal Justice, Trooper Ray Ortiz, Lori Linsky, and the Division of State Police — Intelligence Section. There is no mention in the Complaint of any action by Juan Mattos, Michael Penyak, David Samson, Attorney General Peter C. Harvey, Vaughn L. McKoy, Joseph Trapp, Carl A. Williams, Carson Dunbar, Frederick Madden, Superintendent Joseph Fuentes, and Joseph Santiago that is alleged to have violated Plaintiff's statutory and/or constitutional rights. With respect to these above-mentioned Defendants, therefore, Plaintiff's Complaint fails to state a claim upon which relief can be granted.
4. 42 U.S.C. § 14141 and § 3789d(C) Claims
The same reasoning as that set forth above with respect to the Vineland Defendants on these claims applies with equal force to the State Defendants. Therefore, based upon that same logic, Plaintiff's claims under 42 U.S.C. § 14141 and § 3789d(C) must be dismissed against the State Defendants as well.
5. 42 U.S.C. § 1985 and 42 U.S.C. § 1986 Claims
Plaintiff alleges that the State Defendants violated his rights under 42 U.S.C. § 1985. Section 1985 was enacted to provide a cause of action for individuals deprived of their federal rights by conspiracies. Lee Patterson v. New Jersey Transit Bus Operations, 957 F. Supp. 1391 (1997). In order to state a claim under Section 1985, a plaintiff must allege a conspiracy, motivated by a discriminatory based animus, for the purpose of depriving any person or class of the equal protection of the law and an act in furtherance of the conspiracy whereby a person is injured. Lee Patterson, 957 F. Supp. at 1393, citing United Brotherhood of Carpenters Joiners Local 610 v. Scott, 463 U.S. 825, 828-29 (1983).
Section 1985 "does not apply to all conspiratorial tortious interference with the rights of others, but only to those motivated by some class-based, invidiously discriminatory animus." Hobson v. Wilson, 737 F.2d 1, 14 (D.C. Cir. 1984). The requirement that the conspiracy be motivated by class based animus was added by the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). There, the Court held that in order to give "full effect" to the Congressional purpose of Section 1985, "there must be some racial, or perhaps otherwise class based invidiously discriminatory animus behind the conspirators' action. The conspiracy must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Id. In addition, personal involvement is required to establish a § 1985 cause of action.
In this case, Plaintiff does not assert sufficient factual allegations to support a claim of conspiracy motivated by class based discriminatory animus. Plaintiff's vague allegations do not set forth the elements necessary, as set forth above, to bring such a claim. Conclusory allegations, of the kind that form Plaintiff's Complaint, are insufficient to state a Section 1985 claim. See Faulker v. Reeves, 1992 WL 96286 (E.D. Pa. Apr. 23, 1992).
Plaintiff also alleges against the State Defendants a violation of his rights under 42 U.S.C. § 1986. An essential element of a claim brought pursuant to 42 U.S.C. § 1986, however, is a cognizable § 1985 claim. Section 1986 does not create an independent cause of action. Lee Patterson, 957 F. Supp. at 1403. Instead, Section 1986 claims are derived from Section 1985 claims. Black v. Bayer, 672 F.2d 309, 312 (3d Cir. 1981). As Plaintiff fails to allege a viable Section 1985 claim, Plaintiff's Section 1986 claim must also be dismissed.
6. Plaintiff's 42 U.S.C. § 2000a Claim
Plaintiff alleges that the State Defendants violated his rights under 42 U.S.C. § 2000a et seq. Plaintiff claims the State Defendants "maintain[ed] a pattern or practice of racial discrimination toward targeted racial groups and refused to extend equal access to the plaintiff by and through ongoing patterns and practices of race discrimination, segregation and racial profiling did provide aide to enforce patterns of discrimination and segregation under color of state law of New Jersey in violation of 42 U.S.C. 2000a et seq., 2000a(a)." (Compl. ¶ 2.)
42 U.S.C. § 2000a provides, in pertinent part:
(a) Equal access. All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or natural origin.
Furthermore, subsection (b) defines "place[s] of public accommodation" as follows:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests . . .; (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises . . .; (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; (4) any establishment which is physically located within the premises of any establishment otherwise covered by this subsection.42 U.S.C. § 2000a(b).
The purpose of these provisions is to remove and redress discrimination in places of public accommodation. However, a police station is not considered a place of public accommodation under this provision, as defined pursuant to 42 U.S.C. § 2000a(b). Plaintiff fails to indicate, anywhere in the Complaint, that he was denied access to a State Police station because of his race, claiming instead only that Defendants participated in a cover up of several criminal events in violation of 42 U.S.C. § 2000a. Neither the language nor the purpose of 42 U.S.C. § 2000a, however, contemplates such a claim. Therefore, Plaintiff's claims under 42 U.S.C. § 2000a against the State Defendants will be dismissed.
7. Time-Barring of Claims
Plaintiff has filed suit alleging violations of 42 U.S.C. § 2000a et seq.; 42 U.S.C. § 2000a-1; 42 U.S.C. § 2000a-2(a), (b), (c); 42 U.S.C. § 14141; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1986; and 42 U.S.C. § 3789. These claims can be classified as involving civil rights. "It is now settled law that the Statute of Limitations to be applied in federal civil rights actions is 'the most appropriate (statute of limitations) provided by state law.'" Johnson v. Railway Express Agency, 421 U.S. 454 (1975). The New Jersey Supreme Court has held that the applicable statute of limitations period for discrimination matters is two years, similar to personal injury claims. See Montells v. Haynes, 627 A.2d 654 (N.J. 1983).
The only clear time reference in Plaintiff's Complaint with respect to the State Defendants is that contained within paragraph 20. There, Plaintiff alleges that Trooper Ortiz of the New Jersey Division of State Police sent Vineland Police Officers to Plaintiff's residence on May 8, 2000 for the purpose of committing an assault on Plaintiff. The statute of limitations for this alleged incident thus ran on May 8, 2002. However, Plaintiff did not file his Complaint until May 13, 2003. Moreover, Plaintiff's Complaint contains no specific reference to conduct by the State Defendants which falls within the statute of limitations. Thus, Plaintiff's claims are additionally barred by the statute of limitations.
C. Plaintiff Only's Motion for Sanctions
Plaintiff has brought a motion for sanctions against Defendants' counsel, Joseph M. Scott, Esq. and Melanie L. Armstrong, Deputy Attorney General. Plaintiff states that "the request for sanctions is being made as a result of the above attorney's reckless and intentional abuse of the court and motion practices, specifically intentional interference of the named court proceedings for the purpose of obstructing justice." (Plaintiff's 4/26/04 Letter Brief.) Plaintiff alleges that Defendants' attorneys have perpetuated a vendetta through their "reckless abuse of the rules of court, specifically motion practices and failure to respect court orders issued by the court in [Plaintiff's] favor, and in retaliation the defendants counsel would either send letters to the court or file a series of sham motions propounded on the plaintiff with return dates either on the same dates knowing full well an effective response requiring case study by [Plaintiff] would be required for the purpose of undermining plaintiffs legal rights as a litigant. . . ." (Plaintiff's Certification in Support of Sanctions, ¶ 2.) Moreover, Plaintiff specifically takes issue with Defendants' filing of a motion to dismiss prior to answering the Complaint.
The Federal Rules of Civil Procedure provide that motions to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), may be filed prior to answering a Complaint and there is nothing frivolous or improper about filing such a motion. Plaintiff nevertheless makes broad accusations, without any substantiation, that Defendants' attorneys have engaged in improper and frivolous motion practice. In the opinion of this Court, the motions that have been filed represent the efforts of counsel to diligently pursue the interests of Defendants within the spirit of the rules, not to harass Plaintiff or obstruct justice. Thus, Plaintiff's motion for sanctions is baseless and must be denied. III. CONCLUSION
For the reasons discussed above, the Vineland Defendants' motion to dismiss shall be granted, as shall the motion to dismiss of the State Defendants. In addition, Plaintiff Warren Only's motion for sanctions will be denied. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), of Defendants Mayor Perry Barse; Chief of Police Mario R. Brunetta Jr.; John P. Gallo, Former Director of Police; James Larro, Director of Police; John Kasper Esq., individually and as Judge; and Dolores Middleton, Director of Court as well as the motion to dismiss of of Defendants the State of New Jersey, Department of Law and Public Safety, New Jersey Division of State Police; Carl A. Williams; Carson Dunbar, Jr.; Frederick Madden; Superintendent Joseph Fuentes; Lt. Colonel Juan Mattos; Captain Michael Penyak; Trooper Ray Ortiz; Division of Criminal Justice; David Samson; Attorney General Peter C. Harvey; Vaughn McKoy; Lori Linsky; Joseph Trapp; and Division of State Police — Intelligence Sections, and Plaintiff Warren Only's motion for sanctions; and the Court having reviewed the submissions of the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;IT IS this 16th day of September, 2004, hereby
ORDERED that the motion to dismiss of Defendants Mayor Perry Barse; Chief of Police Mario R. Brunetta Jr.; John P. Gallo, Former Director of Police; James Larro, Director of Police; John Kasper Esq., individually and as Judge; and Dolores Middleton, Director of Court [Docket Item No. 67-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that the motion to dismiss of Defendants the State of New Jersey, Department of Law and Public Safety, New Jersey Division of State Police; Carl A. Williams; Carson Dunbar, Jr.; Frederick Madden; Superintendent Joseph Fuentes; Lt. Colonel Juan Mattos; Captain Michael Penyak; Trooper Ray Ortiz; Division of Criminal Justice; David Samson; Attorney General Peter C. Harvey; Vaughn McKoy; Lori Linsky; Joseph Trapp; and Division of State Police — Intelligence Sections [Docket Item No. 82-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Plaintiff Warren Only's motion for sanctions [Docket Item No. 76-1] shall be, and hereby is, DENIED ; and IT IS FURTHER ORDERED that the Clerk of Court shall close this file on its docket.