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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF NEWARK

BRIEF IN SUPPORT OF THE STATE DEFENDANTS' MOTION TO DISMISS THE COMPLAINT WITH PREJUDICE

OF COUNSEL & ON THE BRIEF:

Kimberly A. Sked Deputy Attorney General

STUART RABNER
ATTORNEY GENERAL OF NEW JERSEY
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625-0112 (609) 777-3609

Attorney for Defendants State of New Jersey, Hon. W. Hunt Dumont, P.J.Cv. and Hon. Deanne M. Wilson, J.S.C.

TABLE OF CONTENTS
TABLE OF CONTENTS.......................i
TABLE OF AUTHORITIES....................iv
PRELIMINARY STATEMENT ..................... 1
PROCEDURAL HISTORY  ...................... 3
STATEMENT OF FACTS  ....................... 6

POINT II
THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE STATE DEFENDANTS ARE ENTITLED TO ABSOLUTE JUDICIAL IMMUNITY ................. 15
A. Plaintiff's Claims for Compensatory Damages Are Barred by Judicial Immunity ... 17
B. Plaintiff's Claim for Injunctive Relief Is Barred By Judicial Immunity ........ 19

POINT III
THE COMPLAINT AGAINST THE STATE, JUDGE DUMONT AND JUDGE WILSON SHOULD BE DISMISSED PURSUANT TO THE ROOKER-FELDMAN ABSTENTION DOCTRINE ..... 21

POINT IV
PURSUANT TO 28 U.S.C. § 1341, THIS COURT LACKS JURISDICTION TO CONSIDER PLAINTIFF'S CLAIMS AGAINST THE STATE WITH REGARD TO THE ASSESSMENT, LEVYING OR COLLECTION OF STATE TAXES 24

POINT V
NONE OF THE STATE DEFENDANTS IS A "PERSON" AS DEFINED IN 42 U.S.C. § 1983............26

POINT VI
THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO PROPERLY ALLEGE A VIOLATION OF HIS CONSTITUTIONAL RIGHTS ...... 28

POINT VII
THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE JUDGES DUMONT AND WILSON ARE ENTITLED TO QUALIFIED IMMUNITY ................ 31

CONCLUSION 33

Pub. L. No. 104-317, 110 Stat. 3853, § 309.........20
28 U.S.C. § 1257......................  21
28 U.S.C. § 1341...................2, 24-25
42 U.S.C. § 1983.................2, 16, 26-27,
31-32
47 U.S.C. § 531.......................27
U.S. Const. Amend. VII...................28
U.S. Const. Amend. XI.................2, 11-15
U.S. Const. Amend. XIV..................28-29
N.J.S.A. 47:1A-1 et sea.  ..................10
N.J.S.A. 59:1-1 et sea....................15
COURT RULES CITED
Page
Fed. R. Civ. P. 12 (b) (6)..................10-11
R. 1:6-1 et sea.  ......................30
R^ 1:6-3.........................30-31
R. 1:6-5.........................30-31
R^ 4:1...........................31
-viii-
R.   4:6-1   et   sea.      .....%................30-31
R.    4:6-2..........................30
R^  4:6-3..........................30
R.   4:46-1   et   sea......................   30-31
R.    4:6-3        30

In the current matter, Plaintiff has named as defendants the State of New Jersey, the Honorable W. Hunt Dumont, P.J.Cv., the Honorable Deanne M. Wilson (the "State Defendants"). Plaintiff claims that in deciding his state court matters, they have violated his constitutional rights by entertaining and/or granting motions to dismiss the complaint or for summary judgment, thereby denying him an alleged due process right to a jury trial in those civil matters. Plaintiff has named the State of New Jersey as a defendant based on adverse rulings against him in underlying litigation by a Tax Court Judge, the Appellate Division, and the Supreme Court of New Jersey. Plaintiff also named the Honorable Dennis M. Cavanaugh, U.S.D.J., for dismissing a complaint raising the same claims as in the current complaint against the State and Judge Dumont. Finally, Plaintiff named as a defendant Patriot Media.

The State Defendants for dismissal of Plaintiff's claims against them on the basis of Eleventh Amendment Sovereign Immunity. Also, the State Defendants are not "persons" liable for suit under 42 U.S.C. § 1983. Furthermore, the State Defendants are entitled to absolute judicial immunity. In addition, the Rooker-Feldman abstention doctrine precludes this Court from acting like a "court of appeals" with respect to the state courts when they are deciding state law matters. Also, this Court lacks jurisdiction to consider Plaintiff's claims concerning the assessment, levying, or collection of taxes under state law pursuant to 28 U.S.C. § 1341. Moreover, Plaintiff has failed to allege a violation of a constitutional right. Finally, Judges Dumont and Wilson are entitled to qualified immunity from Plaintiff's § 1983 claims.

Plaintiff has appeared before Judge Wilson, and is now appearing before the Honorable W. Hunt Dumont, P.J.Cv., in the matter, Mosher v. Borough of Mendham, Docket No. MRS-L-2876-03 . Plaintiff alleges that the Borough "stole" his services and violated his constitutional rights. Complaint at page 4. That matter is still pending. Ibid.

Meanwhile, on March 15, 2006, Plaintiff filed a complaint in the United States District Court, Mosher v. State of New Jersey, et al. , Civil Action Number 06-703 (DMC), asserting that Judge Dumont and the State of New Jersey violated his rights as a result of Judge Dumont's determinations in Mosher v. Borough of Mendham, Docket No. MRS-L-2876-03. Sked Cert, at Exhibits A and D. The Honorable Dennis M. Cavanaugh, U.S.D.J., presided over this matter.

On March 3, 2006, Judge Cavanaugh found that Plaintiff's complaint failed to specifically set forth the relief requested and ordered that Plaintiff set forth a more specific statement of the relief sought within thirty days or the complaint would be dismissed. Sked Cert, at Exhibit E. On March 20, 2006, Plaintiff submitted a document in an attempt to comply with Judge Cavanaugh's order. Sked Cert at Exhibit F. However, Judge Cavanaugh found that Plaintiff's responsive submission did not fix the defects in the Complaint and, by order dated March 24, 2006, Judge Cavanaugh sua sponte dismissed the complaint. Sked Cert, at Exhibit G.

On June 5, 2006, Plaintiff filed the Complaint currently before this court, in which he named as defendants the State of New Jersey, Judge Dumont, Judge Wilson, Judge Cavanaugh, and Patriot Media. See Complaint. He alleges that the defendants have violated his rights on the premise that proceedings he raised in the State courts were incorrectly determined, thereby allegedly violating his federal constitutional right to due process and his purported right to a jury trial in the civil matters.

On August 11, 2006, Judge Cavanaugh moved for summary judgment. On August 23, 2006, Plaintiff opposed Judge Cavanaugh's motion. On August 31, 2006, Judge Cavanaugh advised the Court that he would not be filing a reply brief concerning his motion. On September 29, 2006, this Court granted Judge Cavanaugh's motion for summary judgment, finding him entitled to absolute judicial immunity from suit. Sked Cert, at Exhibit H.

On September 5, 2006, the State Defendants moved for a thirty-day extension in which to answer or otherwise respond to the complaint. On October 3, 2006, the Honorable Claire C. Cecchi, U.S.M.J., granted the State and the State Judge's motion for an extension. This motion to dismiss followed.

STATEMENT OF FACTS
Plaintiff, Gary Mosher, is a disgruntled pro se litigant who has filed the above-referenced complaints against the Borough of Mendham and the Township of Mendham. He also brought an action in the Tax Court of New Jersey (hereinafter the "Tax Court")/ Docket No. 00180-2002. Sked Cert, at Exhibits A and B, Complaint at page 3.

Plaintiff appealed the Tax Court proceeding to the Superior Court of New Jersey, Appellate Division (the "Appellate Division"), which affirmed the Tax Court. Complaint at page 2, Sked Cert, at Exhibit B. Thereafter, Plaintiff petitioned the Supreme Court of New Jersey for certification in that matter, which petition was denied. Mosher v. Dir., Div. of Taxation, 180 N.J. 354 (2004). He is not seeking relief in this action against any Tax Court judges, Appellate Division judges, or Supreme Court justices with respect to that matter. However, Plaintiff's claim against the State of New Jersey is based on his allegations that the determinations made by those tribunals violated his constitutional rights. Complaint at page 3. Mosher v. Borough of Mendham, supra, is still pending, yet Plaintiff attempted to sue the State and Judge Dumont with respect to those ongoing proceedings in Mosher v. State of New Jersey, et al. Judge Cavanaugh sua sponte dismissed the complaint for failure to state the relief sought with sufficient specificity. Sked Cert, at Exhibit G.

Plaintiff then instituted this claim, renewing his arguments concerning the judicial determinations in Mosher v. Borough of Mendham, raising claims concerning the judicial determinations in Mosher v. Township of Mendham and Mosher v. Division of Taxation, and adding Judge Wilson, Judge Cavanaugh, and Patriot Media as defendants.

As best as Plaintiff's vague complaint can be understood, he alleges that Judges Dumont and Wilson violated his constitutional rights in making judicial determinations in Mosher v. Borough of Mendham, Docket No. MRS-L-2876-03, and Mosher v. Township of Mendham, Docket No. MRS-L-218-06 (Law Div. 2006) ..,. (Unpublished).

When Plaintiff appeared before Judges Dumont and Wilson in Mosher v. Borough of Mendham, supra, he claimed that the Borough of Mendham converted services he performed as a volunteer web master of its official website. Sked Cert, at Exhibit A. Plaintiff claims that the Borough of Mendham purportedly committed theft of services, violated his right to free speech and free press under the First Amendment of the United States Constitution, violated his "rights mandating equal treatment/rights" and violated the Americans with Disabilities Act and the New Jersey Law Against Discrimination. Complaint at page 4. The Borough of Mendham is not a party to the action before this Court. Plaintiff does, however, allege that as a result of the judicial determinations, the court violated his federal constitutional right to due process by way of improper dismissal (reversed) through summary judgment, patently inappropriate refusal to allow appropriate amendment of the complaint, patently inappropriate dismissal action, and denial of a jury trial. [Ibid.].

When Plaintiff appeared before Judge Wilson in Mosher v. Township of Mendham, Docket No. 218-06 (Law Div. 2006) (Unpublished), he claimed that the Township improperly denied him access to a cable television station, denied him public records, and charged him excessive fees in producing public records. Ibid. Judge Wilson granted the Township's motion to dismiss the Complaint for failure to state a claim upon which relief may be granted. Sked Cert, at Exhibit C.

Plaintiff is not seeking relief in this action against the Township of Mendham, but has named Patriot Media as a defendant, even though that entity does not appear to be a party to any of Mosher's prior cases. As best as Plaintiff's complaint can be understood, he alleges that, in presiding over this matter, Judge Wilson violated his due process rights as follows:

[p]atently inappropriate dismissal of the complaint without requiring a filed answer, or fair opportunity for discovery, and in clear violation of the court rules. Justice is willfully and deliberately obstructed by the court. flbid.1.

In other words, Plaintiff alleges that Judges Dumont and Wilson, by considering motions to dismiss or for summary judgment, and not holding a jury trial, denied him of due process.

In each of these state court matters, Plaintiff represented himself pro se and, in both instances, he wanted a jury trial. In Mosher v. Township of Mendham, supra, Judge Wilson granted the Township's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Sked Cert, at Exhibit C. Mosher v. Borough of Mendham, supra, is still pending. Complaint at page 4.

Although Plaintiff has not named Judge Kuskin, of the Tax Court, the Appellate Division, or the Supreme Court of New Jersey as defendants in this matter, his claims against the State of New Jersey are premised on his disagreement with rulings in his underlying Tax Court matter. See Complaint, pages 2-4. In this regard, Plaintiff alleges that he has been subjected to "cruel and unusual" or "excessive" taxation, sales tax non-exemption, improper state tax collection procedures, "seizure" of purchase information, and "threat bargaining," all as a result of rulings by Judge Kuskin that were not overturned by either the Appellate Division or the Supreme Court. Complaint at pages 3-4, Sked Cert, at Exhibit B, Mosher v. Dir. , Div. of Taxation, 180 N.J. 354 (2004) . In his complaint, Plaintiff claims that in his state court cases, he has alleged that the New Jersey Open Public Records Act, N.J.S.A. 47:1A-1 et seq. is unconstitutionally vague legislation but that the courts have not addressed the issue to his satisfaction. Complaint at page 4. By way of relief, Plaintiff demands an investigation of the New Jersey Judiciary by the proper federal authority, resolution by this Court of his claims which were dismissed by the state courts or are pending potential dismissal on motion, and an unspecified award of compensatory and punitive damages from the State for "justice maliciously denied, and constitutional rights violated." Id. at page 5, Demand. On February 15, 2006, Plaintiff filed a complaint, Mosher v. State of New Jersey, et al. , Civil Action No. 06-703 (DMC) (D.N.J. 2006), seeking virtually the same relief requested in this matter. Sked Cert, at Exhibit D. Judge Cavanaugh dismissed the action before him sua sponte on the grounds that Plaintiff failed to state a claim for relief. Sked Cert, at Exhibit G.

In lieu of filing an answer, the State and the State Judges now move to dismiss the Plaintiff's claims against them, with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6).

In reviewing the sufficiency of a complaint under Fed. R. Civ. P. 12(b)(6), the Court must accept Plaintiff's well-pled factual allegations as being true. Conley v. Gibson, 355 U.S. 41, 47 (1957) . However, the Court does not have to accept as true any of the legal conclusions contained in the complaint. See Morse v. Lower Merion Sch. Dist., 132 F\.3d 902, 906 (3d Cir. 1997); Walker v. Rose, 22 F.Supp.2d 343, 347 (D.N.J. 1998).

A complaint should be dismissed where the claims asserted are fatally defective and the plaintiff cannot otherwise amend the complaint to allege a set of facts to support his claims. See Oran v. Stafford. 34 F.Supp.2d 906, 913-14 (D.N.J. 1999); Bryant v. New Jersey Dept. of Transp.. 1 F.Supp.2d 426, 430-31 (D.N.J. 1998). For example, dismissal is warranted where the asserted claim lacks a required element, Campbell v. City of San Antonio, 43 F_._3d 973, 975 (5th Cir. 1997), or where there is an "insuperable barrier" to a claim such as an immunity, res judicata, collateral estoppel or the entire controversy doctrine, Flight Sys., Inc. v. Electronic Data Svs., 112 F.3d 124, 127-28 (3d Cir. 1997); Camero v. Kostos. 253 F.Supp. 331, 338 (D.N.J. 1966).

In the present matter, Plaintiff's claims against the State, Judge Dumont, and Judge Wilson should be dismissed because they are absolutely immune from suit on the basis of sovereign immunity under the Eleventh Amendment of the United States Constitution.

It is well established that the Constitution does not provide for federal jurisdiction over lawsuits brought by individuals against a State unless the State has consented to such jurisdiction. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) . This protection from federal jurisdiction emanates from the Eleventh Amendment to the United States Constitution. Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) . The Eleventh Amendment states:

The 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 another State, or by Citizens or Subjects of any Foreign State. [U.S. Const. Amend. XI.]

The Eleventh Amendment has been understood "to stand for not so much what it says, but for the presupposition . . . which it confirms." See Seminole Tribe, supra, 517 U.S. at 54 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). The presupposition confirms that each State is a sovereign entity in the federal system, and that a State is not subject to suit in federal court by an individual without its consent. See id.

The type of relief sought by a plaintiff is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See id. See also Cory v. White, 457 U.S. 85, 90 (1982) ("It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought"). The Eleventh Amendment acts as a jurisdictional bar to the federal courts hearing claims against a State. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997), aff'd, 527 U.S. 666 (1999).

In addition to barring suits by citizens of one State against another State, the United States Supreme Court recognizes that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)(quoting Employees v. Missouri Dep't of Public Health & Welfare. 411 U.S. 279, 280 (1973)) ; See also Edelman v. Jordan, 415 U.S. 651, 653 (1974) .

Not only does the Eleventh Amendment generally prohibit federal courts from hearing suits brought by private citizens against a State government without that State's consent, but the State's immunity extends to the State's agencies and State officers who act on behalf of the State and can therefore assert the State's sovereign immunity. Natural Resources Defense Council v. California Dep't Of Transp. . 96 F^3d 420 (9th Cir. 1996) . This immunity further extends to suits brought against the State pursuant to the Civil Rights Acts, including Section 1983. Will v. Michigan Depft of State Police, 491 U.S. 58, 64 (1989); Jordan v. New Jersey Dep't of Corrections, 881 F.Supp. 947, 951 (D.N.J. 1995) .

It is well-established that the State of New Jersey, the Superior Court of New Jersey, and the Judges of the Superior Court of New Jersey, are entitled to Eleventh Amendment sovereign immunity. See Johnson v. State of New Jersey, 869 F.Supp. 289, 298 (D.N.J. 1994); Hunter v. Supreme Court of New Jersey, 951 F.Supp. 1161, 1177 (D.N.J. 1996), aff d. 118 F.3d 1575 (1997); Gregory v. Administrative Office of the Courts of the State of New Jersey, 168 F.Supp.2d 319 (D.N.J. 2001) . In particular, judges and other officials of the Superior Court of New Jersey who are sued for actions taken in their official capacity are "entitled to cloak [themselves] in the State's sovereign immunity." Johnson, 869 F.Supp. at 298.

New Jersey has not waived its sovereign immunity with regard to suits brought in federal court against its court system or the officials thereof. Johnson, 869 F.Supp. at 298. More specifically, the State of New Jersey has not waived its sovereign immunity with respect to Section 1983 claims brought against it in federal court. See Ritchie v. Cahill, 286 F.Supp. 1207, 1210 (D.N.J. 1974) (holding that State of New Jersey did not waive its sovereign immunity so that it can be sued in federal court when State enacted the Tort Claims Act, N.J.S.A. 59:1-1 et seq., waiving sovereign immunity under certain circumstances to tort actions in State court). Courts have consistently held that sovereign immunity bars Section 1983 claims against the State and its agencies. See e.g. Garcia v. Richard Stockton Coll. of New Jersey, 210 F.Supp.2d 545, 550 (D.N.J. 2002) ; Rudolph v. Adamar of New Jersey, 153 F.Supp.2d 528, 541-44 (D.N.J. 2001); Johnson, 869 F.Supp. at 296-97; Jordan, 881 F.Supp. at 951.

In this case, Eleventh Amendment sovereign immunity bars all claims against the State of New Jersey, as well as against Judges Dumont and Wilson, in their official capacities as State officials. To the extent that Plaintiff seeks to recover money damages, declaratory relief and/or injunctive relief in this action, his claims should be dismissed.

POINT II
THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE STATE DEFENDANTS ARE ENTITLED TO ABSOLUTE JUDICIAL IMMUNITY.

It has long been held that judges and courts have total immunity from liability based upon the performance of their judicial functions. See Bradley v. Fisher, 80 U.S. 335, 347 (1872); Briscoe v. LaHue, 460 U.S. 325, 334 (1983); Mireles v. Waco, 502 U.S. 9, 9-10 (1991^(per curiam). Immunity is available, even if a judge acts erroneously, corruptly or in excess of his jurisdiction. Mireles, 502 U.S. at 11-12; Stump v. Sparkman, 435 U.S. 349, 355-57 (1978).

In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held that this absolute immunity applies to suits alleging violations of federal civil rights under 42 U.S.C. § 1983. Id. at 554-55. Later cases have affirmed this principle. See Briscoe v. LaHue, 460 U.S. at 334; Stump v. Sparkman, 435 U.S. at 355; Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 734-35 (1980). The doctrine of absolute immunity for the judiciary is soundly based on the need to permit judges to render decisions with independence and without fear of consequences. Pierson, 386 U.S. at 554 (stating that purpose of immunity is to protect the public "whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of consequences"). "Any errors made by a judge may be corrected on appeal, but a judge should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption." Shuster v. Oppelman, 963 F.Supp. 394, 396 (S.D.N.Y. 1997)(internal quotations marks and citation omitted). Judicial immunity is intended to provide judges with the maximum ability to act fearlessly and impartially, without an atmosphere of intimidation. Ferri v. Ackerman, 444 U.S. 193, 203-04 (1979). It is necessary to assure that judges can perform their functions without harassment or intimidation. Butz v. Economou, 438 U. S. 478, 512 (1978) . A. Plaintiff's Claims for Compensatory Damages Are Barred by Judicial Immunity. In the instant case, all of the allegedly unconstitutional acts by Judges Dumont and Wilson were "judicial" acts protected by absolute judicial immunity. Similarly, Plaintiff's claims against the State of New Jersey are based upon "judicial" acts by Judge Kuskin, the Appellate Division, and the New Jersey Supreme Court. These acts are all protected by absolute judicial immunity. Accordingly, Plaintiff may not recover compensatory damages and his claims against these defendants should be dismissed.

The application of judicial immunity in a particular case depends upon an analysis of the act in question. As explained by the Court in Foster v. Walsh. 864 F\.2d 416 (6th Cir. 1988) : It is well established that judges and other court officers enjoy absolute immunity from suit on claims arising out of the performance of judicial or quasi-judicial functions, (citations omitted). It is equally clear that judges and other court officers are not absolutely immune from suits based on performance of non-judicial functions . Whether an act is judicial in character does not depend on whether it is discretionary. The appropriate inquiry is whether the function in question is a truly judicial act or an act that simply happens to have been done by judges. [Foster, 864 F_^2d at 417-18 (citations and internal quotation marks omitted and text modified)]. The Foster court had "no difficulty" concluding that the issuance of the warrant for plaintiff's arrest, even though a non-discretionary act, was a "truly judicial act." Id. at 418.

Here, Plaintiff alleges that Judges Dumont and Wilson violated his constitutional rights by dismissing or considering dismissing his complaints before them on motions for summary judgment or to dismiss for failure to state a claim upon which relief can be granted. See Complaint, pages 4-5. Plaintiff alleges that the State of New Jersey violated his constitutional rights by virtue of rulings in his underlying tax matter before Judge Kuskin, the Appellate Division, and the New Jersey Supreme Court. Complaint at pages 2-4.

Plaintiff was a party to litigation pending before Judges Dumont and Wilson, and in the matters before Judge Kuskin, the Appellate Division, and the New Jersey Supreme Court. Within the context of those actions, the decisions by the courts whether or not to afford him a jury trial2, as well as other rulings, 2 Indeed, in a similar case, the court also dismissed on the basis of absolute judicial immunity. See Quinn v. State of Kansas, I F_^3d 1249 (10th Cir. 1993) (table) (reported at 1993 U.S. App. LEXIS 19361)(holding that claim against state court judge for damages as a result of being denied jury trial in state probate action was properly dismissed on grounds of absolute judicial including the decision concerning the ultimate issues in the cases, are purely judicial decisions, which are subject to absolute judicial immunity. Accordingly, Plaintiff's civil rights claims against the State Defendants should be dismissed.

To the extent that the Complaint may be read to allege that the State Defendants' actions were intended to harm Plaintiff or were the result of negligence, these defendants remain immunized. Absolute judicial immunity applies even when the judicial and quasi-judicial acts in question were in error, malicious, or were in excess of jurisdiction. See Mireles, 502 U.S. at 11-12; Bolin v. Story, 225 F.3d 1234, 1239 (llth Cir. 2000).

B. Plaintiff's Claims for Injunctive Relief Are Barred By Judicial Immunity.

Absolute judicial immunity even bars Plaintiff's claims for injunctive and declaratory relief in this case. The fact that Plaintiff does not seek solely money damages for his federal claims makes no difference insofar as the application of judicial immunity is concerned. In Pulliam v. Allen, 466 U.S. 522 (1984), the Supreme Court held in a Section 1983 case involving claims against a state court judge that judicial immunity did not extend to the plaintiff's claims for prospective injunctive relief. Id. at 541- immunity), cert, den.. 510 U.S. 1043 (1994). 42. However, in 1996, Congress enacted the Federal Courts Improvement Act ("FCIA"), Pub. L. No. 104-317, Title III, 110 Stat. 3853, which amended Section 1983 to provide that "injunctive relief shall not be granted" in any Section 1983 action "against a judicial officer for an act or omission taken in such officer's judicial capacity... unless a declaratory decree was violated or declaratory relief was unavailable" Id.,., at § 309 (c).

The FCIA restored absolute judicial immunity with respect to all claims, including those for injunctive (where declaratory relief is unavailable), as well as non-injunctive relief. See Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 197-98 (3d Cir. 2000)(holding that FCIA's purpose was to overrule Pulliam with respect to the availability of injunctive relief against judges); Kampfer v. Scullin, 989 F.Supp. 194, 201 (N.D.N.Y. 1997)(holding that the FCIA "restored absolute immunity and legislatively reversed Pulliam in several important aspects"); See also Jones v. Newman, Docket No. 98 CV 7460 (MBM), 1999 WL 493429 (S.D.N.Y. June 30, 1999)(dismissing plaintiff's Bivens claims against federal district and circuit court judges under FCIA where plaintiff failed to allege the violation of declaratory decree or that declaratory relief was unavailable); Reilly v. Weiss, Docket No. 97-CV-0588, 1998 WL 1110695, at *1 n. 2 (D.N.J. June 15, 1998) (holding in Section 1983 action against Superior Court judges that absolute judicial immunity under FCIA barred any injunctive relief where plaintiff failed to allege that the judges violated a declaratory decree or that declaratory relief was unavailable) (Barry, J.) . Thus, Plaintiff is completely barred from any recovery, by way of money damages, declatory, or injunctive relief against the State Defendants in this case.

POINT III

THE COMPLAINT AGAINST THE STATE DEFENDANTS SHOULD BE DISMISSED PURSUANT TO THE ROOKER-FELDMAN ABSTENTION DOCTRINE.

The Rooker-Feldman abstention doctrine, derived from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), bars lower federal courts from exercising jurisdiction over a case that is the functional equivalent of an appeal from a state court judgment. FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996) . This bar applies not only to claims actually adjudicated by state courts but also to claims that are "inextricably intertwined" with a state court's decisions. ITT Corp. v. Intelnet Int'1 Corp.. 366 F.3d 205, 210 (3d Cir. 2004); Gentlemen's Retreat. Inc. v. City of Philadelphia, 109 F.Supp.2d 374, 378 (E.D.Pa. 2000) . The Rooker-Feldman abstention doctrine is based upon Congress's determination that lower federal courts may not directly review the decisions of a state court. Gulla v. North Strabane Twp., 146 F.3d 168, 171 (3d Cir. 1998); See also 28 U.S.C. § 1257.

"District courts lack subject matter jurisdiction once a state court has adjudicated an issue because Congress has conferred only original jurisdiction not appellate jurisdiction on the district courts." Guarino v. Larsen, 11 F_._3d 1151, 1156-57 (3d Cir. 1993). The Rooker-Fe1dman doctrine applies to "the final adjudication of a state's highest court," Peldman, supra, 460 U.S. at 48 n. 16, as well as the final decisions of lower state courts, Port Auth. Police Benevolent Assoc. v. Port Auth. of New York & New Jersey, 973 F.2d 169, 178 (3d Cir. 1992).

A claim is inextricably intertwined with the state court adjudication when "federal relief can only be predicated upon a conviction that the state court was wrong." Parkview Assoc. v. City of Lebanon. 225 E\.3d 321, 325 (3d Cir. 2000) . "Rooker-Feldman applies only when in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered, or must take action that would render the state judgment ineffectual." FOCUS, supra, 75 F.3d at 840. To determine whether a particular claim for federal relief is inextricably intertwined with a prior state court decision, the court looks at "the questions of state law that the state court was required to reach in order to render its decision." Desi's Pizza v. City of Wilkes-Barre, 321 F_^3d 411, 421 (3d Cir. 2003) .

In the instant matter, Plaintiff alleges violations of his constitutional rights in connection with state court rulings rendered against him by Judges Dumont and Wilson. Complaint at pages 4-5. In order to adjudicate Plaintiff's claims, this Court must act as a "court of appeals" over the state court proceedings. For Plaintiff to prevail here, he must convince this Court that the state proceedings were adjudicated wrongly, thus rendering those decisions "ineffectual." See Parkview Assocs., supra, 225 F. 3d at 325; FOCUS, supra, 75 F_^3d at 340. However, Rooker-Feldman teaches that the lower federal courts do not function as appellate courts of the state.

Plaintiff's attempt to disguise his appeal as a civil rights action does not change this analysis. See Hagerty v. Succession of Clement, 749 F\_2d 217, 220 (5th Cir. 1984) ("[A] plaintiff may not seek a reversal of a state court judgment simply by casting his complaint in the form of a civil rights action."); See also Stern v. Nix, 840 F\_2d 208 (3d Cir. 1988) (holding that plaintiff's challenge to state court rule regarding admission to bar was effectively an appeal of its decision not to admit him to bar and thus was barred by Rooker-Feldman).

In conclusion, this Court lacks jurisdiction to grant Plaintiff the relief he seeks. Plaintiff's recourse to address alleged constitutional error in the State proceedings is to seek appellate review in the state court. Because Plaintiff has previously sought appellate review in at least one other judicial proceeding not currently before this court, he is plainly aware of the state appellate process. He cannot collaterally attack the state proceedings in this action. Accordingly, the Complaint should be dismissed.

POINT IV
PURSUANT TO 28 U.S.C. § 1341, THIS COURT LACKS JURISDICTION TO CONSIDER PLAINTIFF'S CLAIMS AGAINST THE STATE WITH REGARD TO THE ASSESSMENT, LEVYING OR COLLECTION OF STATE TAXES.

Plaintiff's constitutional right claims against the State relate to court rulings concerning the State's levying, assessment, and collection of taxes. Complaint at pages 3-4 (referring to "cruel and unusual" or "excessive" taxation, sales tax non- exemption, and state tax collection procedures). Part of the ruling he seeks is resolution by this Court of the state tax issues he raises, which were already adjudicated by the state courts. However, this Court is without jurisdiction to consider these claims. In particular, 28 U.S.C. § 1341, the Tax Injunction Act, deprives the United States District Courts of jurisdiction to enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. [28 U.S.C. § 1341]. The United States Supreme Court has interpreted the Tax Injunction Act as severely restricting the recourse available in the federal courts with regard to state taxation issues:

Though federal courts are obliged to hear § 1983 claims, it is clear that they may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists. See Fair Assessment [in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100 (1981)] at 116; Great Lakes Dredge & Dock Co. v. Huffman. [319 U.S. 293 (1943)], at 293; Matthews v. Rodgers, 284 U.S. 521, 525 [parallel citation omitted] , (1932); 28 U.S.C. § 1341.

[National Private Truck Council v. Oklahoma Tax Comm'n, 515 U.S. 582, (1995)]. Indeed, because of issues of comity and federalism, Congress never authorized federal courts to entertain damages actions under § 1983 against state taxes when state law furnishes an adequate legal remedy. [Id. at 587].

By his own admission, Plaintiff had adequate legal recourse in the New Jersey courts. Specifically, he was able to file a complaint in the Tax Court of New Jersey, seek appeal of the Tax Court's decision in the Superior Court of New Jersey Appellate Division, and, thereafter, seek certification to the Supreme Court of New Jersey. Complaint at pages 2-4, Mosher v. Dir. , Div. of Taxation. 180 N.J. 354 (2004).

Plaintiff apparently availed himself of all of these remedies, but disagreed with the outcome. Complaint at pages 2-4. However, the fact that he did not agree with the outcome does not equate to his being without an adequate legal remedy in the state court system. Thus, this Court does not have jurisdiction to hear Plaintiff's claims against the State in connection with its system of levying, assessing, collection of taxes. These claims against the State must be dismissed.

POINT V
NONE OF THE STATE DEFENDANTS IS A "PERSON" AS DEFINED IN 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 confers a private right of action for damages and injunctive relief against state.actors who deprive any citizen or person within the jurisdiction of the United States of "rights, privileges or immunities secured by the Constitution and laws." See, e.g. , Monroe v. Pape, 365 U.S. 167 (1961)(constitutional deprivations). It does not create any substantive rights by itself, rather, it provides "an avenue to recovery for the deprivation of established constitutional or statutory rights." Green v. City of Paterson, 971 F.Supp. 891, 900 (D.N.J. 1997) (citing Kniepp v. Tedder. 95 F\_3d 1199, 1204 (3d Cir. 1996). In this case, Plaintiff alleges that his federal constitutional rights were violated. Although Plaintiff fails to specify, he presumably comes before this Court pursuant to 42 U.S.C. § 1983.3

Plaintiff is suing the State of New Jersey for alleged federal constitutional rights violations occasioned by adverse rulings against him by Judge Kuskin of the Tax Court, the Appellate Division, and New Jersey Supreme Court in his underlying tax case. Plaintiff is suing Judges Dumont and Wilson in their official capacities as Judges of the Superior Court of New Jersey, Law Division, Morris Vicinage, in connection with their presiding over two lawsuits that he instituted. See Complaint.

Plaintiff's § 1983 claims should be dismissed for the simple reason that none of the State Defendants is a "person" as defined in 42 U.S.C. § 1983. In Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989), the United States Supreme Court decreed that neither a state nor a state agency nor state officials acting in their official capacity, as Judge Dumont and Judge Wilson did here, qualify as a "person" within the meaning of 42 U.S.C. § 1983. Thus, because Plaintiff's claims are lodged against the State, and Judges Dumont Judge Wilson in their official capacities as Superior Court Judges, those claims should be dismissed.

3The only statute that Plaintiff refers to is 47 U.S.C. § 531, with regard to his claims against Patriot Media. Complaint at page 2. Plaintiff invokes no statutes as providing jurisdiction or a cause of action with regard to the State, Judge Dumont, and/or Judge Wilson.

POINT VI

THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO PROPERLY ALLEGE A VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

Plaintiff claims that Judges Dumont and Wilson denied him his rights to due process because they ruled on motions against him and allegedly deprived him of his right to a jury trial.4 Complaint at pages 4-5. Apparently, Plaintiff believes that the Fourtheenth Amendment of the Constitution requires a state to conduct its judicial proceedings by jury trial. In pertinent part, Section 1 of the Fourteenth Amendment states,

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law. . . . However, the Supreme Court found, long ago, that [t]he States, so far as [the Seventh] amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship.

4With respect to the State, Plaintiff's claims that the State violated various unspecified constitutional rights of his when imposing or collecting state taxes because the Tax Court, the Appellate Division, and the New Jersey Supreme Court did not his address his arguments concerning taxation must be dismissed. As noted in Point IV, this Court does not have jurisdiction to entertain his claims related to the assessment, levying or collection of state taxes.

which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. [ Walker v. Sauvinet. 92 U.S. 90, 92-93 (1876) (citation omitted) (emphasis added)] .

Moreover, this precedent still holds true today: [t]he Supreme Court has consistently refused to rule that preservation of civil jury trial is an essential element of ordered liberty required of the states by the due process clause of the fourteenth amendment. Palko v. Connecticut, 302 U.S. 319, 324-25 (1937); Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co.. 284 U.S. 151, 158 (1931); Melancon v. McKeithen, 345 F. Supp. 1025 (E.D.La.) (three-judge court), aff'd mem. 409 U.S. 943 (1972), 409 U.S. 1098 (1972) (all parallel citations omitted). [In re Japanese Elec. Prods. Antitrust Litig., 6031 F^2d 1069, 1085 (3d Cir. 1980)]. Thus, the pertinent inquiry in determining whether denial of a jury trial in a civil matter is constitutional, is whether Plaintiff's state court matters were conducted "according to the [State's] settled course of judicial proceedings." Walker v. Sauvinet, supra. A review of Plaintiff's state court proceedings reveals that Judges Dumont and Wilson did conduct, and are continuing to conduct, Plaintiff's cases before them according to the State's settled course of judicial proceedings.

Under the state's court rules, the Borough of Mendham and the Township of Mendham could move for dismissal or summary judgment of the actions Plaintiff brought against them. R. 1:6-1 et seq. , R. 4:6-1 et seq. , R. 4:46-1 et seq. In Mosher v. Township of Mendham, Docket No. MRS-L-218-06, Judge Wilson decided the Township of Mendham's motion under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which relief could be granted. Sked Cert, at Exhibit C. A motion on the pleadings under R. 4:6-2(a) (lack of jurisdiction over subject matter), (e) (failure to state a claim upon which relief can be granted) , or (f) (failure to join a party without whom the action cannot proceed) is generally to be heard and decided before trial. R. 4:6-3. According to the State of New Jersey's settled course of judicial proceedings, Walker was not entitled to any trial where his pleadings were fatally flawed. R. 4:6-2(e), R. 4:6-3. In any event, Plaintiff had the opportunity to oppose the Township's motion. R. 1:6-3, R. 1:6-5. His disagreement with the outcome of the proceedings does not equate with denial of due process. Plaintiff was not denied due process under the Fourteenth Amendment.

Mosher v. Borough of Mendham, Docket No. MRS-L-2876-03, is still pending. Nevertheless, these court rules would also permit filing, consideration, and granting of a motion to dismiss or for summary judgment in that matter, as well. R. 1:6-1 et seq. ,

R. 4:1, R. 4:6-1 et seq., R. 4:46-1 et seq. If such a motion were filed, Plaintiff will have the opportunity to oppose it. R. 1:6-3, R. 1:6-5. If Plaintiff's claims do not withstand a dispositive motion, if filed, or if in fact pending, his constitutional right to due process is not infringed. In conclusion, Plaintiff's claim brought under 42 U.S.C. § 1983 alleging denial of due process must fail.

POINT VII
THE COMPLAINT SHOULD BE DISMISSED BECAUSE JUDGES DUMONT AND WILSON ARE ENTITLED TO QUALIFIED IMMUNITY.

It is undisputed that government officials may claim the defense of qualified immunity. Procunier v. Navarette, 434 U. 5. 555, 561-62 (1978); Harlow v. Fitzgerald. 457 U.S. 800 (1982). Qualified immunity shields officials performing discretionary functions from civil liability unless they are "plainly incompetent or . . . knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Whether the official is shielded from liability for an alleged unlawful official action turns on the "objective legal reasonableness" of the action assessed in light of the "clearly established" law at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987). Unless the official's action violates clearly established law, the official is immune. Mitchell v. Forsvth. 472 U.S. 511 (1985); Crawford-El v. Britton, 523 U.S. 574, 592 (1998).

Incorporating here the discussion of the alleged constitutional violations set forth in Point VI, Judges Dumont and Wilson are entitled to qualified immunity as a matter of law. Plaintiff has not demonstrated that Judges Wilson or Dumont violated his clearly established constitutional rights, nor that they would have any reason to understand that their actions in rendering decisions in cases brought by Plaintiff would violate his constitutional rights. Accordingly, in the absence of any other immunities, Judges Dumont and Wilson are entitled to qualified immunity and the § 1983 claims against them should be dismissed.

CONCLUSION
For the reasons set forth above, Plaintiff's Complaint should be dismissed with prejudice as against the State of New Jersey and Judges Dumont and Wilson. Respectfully submitted,

STUART RABNER
ATTORNEY GENERAL OF NEW JERSEY
Deputy Attorney General
Dated: October 5, 2006