GARCIA v. CITY OF NORTH BERGEN (D.N.J. 5-5-2008)

EDWARD J. GARCIA, Plaintiff, v. CITY OF NORTH BERGEN, et al., Defendants.

Civil Action No. 08-1990 (DMC).United States District Court, D. New Jersey.
May 5, 2008

MEMORANDUM ORDER
DENNIS CAVANAUGH, District Judge

Plaintiff seeks to file his complaint in forma pauperis without prepayment of fees pursuant to 28 U.S.C. § 1915. Plaintiff duly applied to prosecute this matter in forma pauperis.[1]

IT IS APPEARING THAT:

1. The instant matter is one of four legal matters received by
the Clerk from Plaintiff during April 2008. Specifically, the
Clerk received the following Plaintiff’s submissions:

a. On April 2, 2008, the Clerk received a civil complaint,
executed pursuant to 42 U.S.C. § 1983; that matter is now
pending before Judge Martini. See Civil Action No. 08-
1648 (WJM), Docket Entry No. 1.

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b. On April 9, 2008, the Clerk received Plaintiff’s petition
for a writ of habeas corpus, filed pursuant to
28 U.S.C. § 2254; that matter is now pending before Judge Wigenton.
See Civil Action No. 08-1761 (SDW), Docket Entry No. 1;

c. On April 15, 2008, the Clerk received another civil
complaint, executed pursuant to 42 U.S.C. § 1983; that
matter is now pending before Judge Linares. See Civil
Action No. 08-1855 (JLL), Docket Entry No. 1;

d. Finally, on April 23, 2009, the Clerk received the
instant civil complaint, executed pursuant to
42 U.S.C. § 1983 and pending before the undersigned. See Docket
Entry No. 1.

2. The gist of Plaintiff’s four above-listed actions could be
summarized as follows:

a. In the action pending before the undersigned, Plaintiff
challenges judicial handling of his criminal prosecution
pending before a judge at the Municipal Court of North
Bergen Township, Hudson County, New Jersey;

b. In the action pending before Judge Martini, Plaintiff
challenges his arrest and judicial handling of the
ensuing apparently different criminal prosecution
currently pending before two judges at the Municipal
Court of the City of Union City, Hudson County, New
Jersey;

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c. In the action pending before Judge Linares, Plaintiff’s
complaint states a multitude of challenges related to
confinement of inmates at the Facility, that is Hudson
County Correctional Center; and

d. In the action pending before Judge Wigenton, Plaintiff’s
petition asserts that Plaintiff was provided with
ineffective assistance of counsel when he pled guilty to
shoplifting charges filed against him with the Superior
Court of New Jersey, Law Division, Hudson County, on the
basis of the offense Plaintiff committed in Jersey City,
Hudson county, New Jersey, i.e., an offense different
from his criminal prosecutions in municipal courts.

3. It appears that Plaintiff is a convicted prisoner currently
confined, pursuant to the shoplifting sentence imposed as a
result of his plea agreement, but still facing two different
criminal charges, one pending in North Bergen Township and
another in the Union City.

4. The instant matter is related to the charges pending before
the Municipal Court of North Bergen Township. Specifically,
Plaintiff asserts that Defendant Honorable Nino F. Falcone, a
municipal judge presiding over Plaintiff’s North Bergen
Township criminal proceedings “violat[e] Due Process Clause/equal protection[,] fail[ed] to adjudicate disposition on
timely manner [and] failed to change the venue.” Docket Entry

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No. 1, ¶ 5(b).[2] Although Plaintiff names North Bergen
Township as the second Defendant in this matter, Plaintiff
states no allegations whatsoever against the Township. See
generally, Docket Entry No. 1.

5. Judge Falcone is absolutely immune from § 1983 suit, pursuant
to the Eleventh Amendment. See, e.g., Kentucky v. Graham,
473 U.S. 159, 169 (1985); Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 100 (1984); Quern v. Jordan,
440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651, 663 (1974);
Beaver v. Burlington County Det. Ctr.,
2008 U.S. Dist. LEXIS 18978, at *28-29 and n. 5 (D.N.J. Mar. 11, 2008) (citing Mt.

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Healthy City Bd. of Ed. V. Doyle, 429 U.S. 274, 280 (1977);
Callahan v. Philadelphia, 207 F.3d 668, 670-74 (3d Cir. 2000);
Kelly v. Municipal Courts, 97 F.3d 902, 907-08 (7th Cir.
1996); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.
1995); Knight v. City of Margate, 86 N.J. 374, 385 (1981);
State v. Garcia, 297 N.J. Super. 108, 123-24 (Mun. Ct. 1996);
and N.J.S.A. 2B:12-17 and 2B:12-18). Moreover, Plaintiff’s
claims are barred by the Younger v. Harris, 401 U.S. 37
(1971), doctrine of abstention. See Middlesex County Ethics
Committee v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982).
Indeed, Plaintiff may state his lack of speedy trial claim by
challenging the sentence imposed by Judge Falcone (provided
that such sentence is indeed imposed) either to Judge Falcone,
or on direct appeal or in his application for collateral
review. Consequently, Plaintiff’s claims against Judge
Falcone will be dismissed, same as Plaintiff’s apparently
implied yet factless derivative claims against the Township.[3]

[1] Plaintiff duly submitted his application to prosecute this
matter in forma pauperis. Based on his affidavit of indigence and
the absence of three qualifying dismissals within 28 U.S.C. § 1915(g),
the Court will grant Plaintiff’s application to proceed in
forma pauperis, pursuant to 28 U.S.C. § 1915(a) (1998) and order
the Clerk of the Court to file the instant Complaint.
[2] Plaintiff further elaborates on his claims stating that
“Honorable Falcone in a corrupted manner did neglect to accordingly
dispose motion or grant hearing as for disposition, violating Due
Process Clause of equal protection as to enlarge the process until
elapse of present sentence of 364 days for then proceed to hear
motion by deprived [Plaintiff] of constitutional right as done to
other [inmates], he is abusing discretion of authority of judiciary
and neglect legal document of relief sought therein.” Docket Entry
No. 1, ¶ 8. This Court’s best guess as to the meaning of the
foregoing statement is that Plaintiff believes as follows: (a)
Plaintiff will necessarily be convicted on the charges currently
pending before Judge Falcone; (2) Judge Falcone will necessarily
sentence Plaintiff to a certain period of imprisonment; (3) had
Judge Falcone so sentenced Plaintiff during Plaintiff’s current
incarceration (based on his shoplifting charges), Judge Falcone
would necessarily impose a sentence running concurrently with
Plaintiff’s current sentence of 364 days, hence enabling Plaintiff
to serve the sentence based on the charges currently pending in
North Bergen Township simultaneously with his current shoplifting
sentence; and (4) in the event Judge Falcone sentences Plaintiff on
his North Bergen criminal charges after Plaintiff completes his
shoplifting sentence (or closer to the end of that shoplifting
sentence), Plaintiff would have to actually serve all or part of
the sentence imposed by Judge Falcone. Therefore, Plaintiff is
asserting a lack of speedy trial claim against Judge Falcone.
[3] Plaintiff’s claims in the instant matter are substantively
identical to Plaintiff’s claims stated against the municipal judges
at the City of Union City and examined extensively by Judge Martini in
Civil Action No. 08-1648 (WJM).

IT IS therefore on this ___ day of __________, 2008,

ORDERED that Plaintiff’s application to proceed in formapauperis is hereby granted; and it is further

ORDERED that the Clerk of the Court shall file the complaint

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without prepayment of the filing fee; and it is further

ORDERED that Plaintiff’s claims are dismissed with prejudice; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk of the Court shall forward copies of this order by regular U.S. mail to the Attorney General of the State of New Jersey and the warden of the place of Plaintiff’s current confinement; and it is further

ORDERED that Plaintiff is assessed a filing fee of $350.00, which shall be deducted from his prison account pursuant to 28 U.S.C. § 1915(b)(2) in the manner set forth below; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A), Plaintiff is assessed an initial partial filing fee and, when funds exist, the agency having custody of Plaintiff shall deduct said initial fee from Plaintiff’s prison account and forward it to the Clerk of the Court; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing fee is paid, each subsequent month that the amount in Plaintiff’s prison account exceeds $10.00, the agency having custody of the plaintiff shall assess, deduct from Plaintiff’s account, and forward to the Clerk of the Court payments equal to 20% of the preceding month’s income credited to Plaintiff’s prison account, with each payment referencing the docket number of this action; and it is finally

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ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular U.S. mail and close the file in this matter.

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