GAGE v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THOMAS I. GAGE,

Plaintiff,

Civil Action No. 21-10763 (MAS) (LHG)

. MEMORANDUM OPINION

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION et

al.,

Defendants.

SHIPP, District Judge

This matter comes before the Court on Defendants New Jersey Department of

Environmental Protection’s (the “Department”) and John K. Ruschke’s (“Ruschke,” and together

with the Department, “Defendants”) separate Motions to Dismiss pro se Plaintiff Thomas I. Gage’s

(“Gage”) Complaint. (ECF Nos. 4, 5.) Rather than oppose, Gage filed a motion to compel

discovery and a motion to amend his Complaint. (ECF Nos. 6, 9.) The Court has carefully

considered the parties’ submissions and decides the motions without oral argument under Local

Civil Rule 78.1. For the reasons below, the Court grants Defendants’ Motions.

L BACKGROUND .

This case represents another of the lengthy list of grievances Gage has filed in this District.

To date, none have been meritorious.! Nevertheless, the Court takes as true all well-pled factual

The extensive list includes at least seventeen actions before seven judges in this District and nine

unsuccessful appeals to the U.S. Court of Appeals for the Third Circuit:

(footnote continued)

(1) Gage v. Township of Warren, No. 09-519 (D.N.J. June 10, 2009) (Wolfson, J.) (dismissed for

failure of pleading);

(2) Gage v. New Jersey, No. 10-2603 (D.N.J. June 11, 2010) (Wolfson, J.) (dismissed for failure

of pleading), aff'd, 408 F. App’x 622 (3d Cir.);

(3) Gage v. Wells Fargo Bank, No. 11-862 (D.N.J. Mar. 5, 2012) (Wolfson, J.) (dismissed for,

among other reasons, qualified immunity), aff'd, 521 F. App’x 49 (3d Cir. 2013);

(4) Gage v. Warren Twp. Comm. & Planning Bd. Members, No. 11-1501 (D.N.J. Nov. 29, 2011)

(Wolfson, J.) (dismissed for, among other reasons, res judicata and judicial immunity), aff'd, 463

F. App’x 68 (3d Cir. 2012);

(5) Gage v. Wells Fargo Bank, No. 12-777 (D.N.J. July 9, 2013) (Wolfson, J.) (dismissed for,

among other reasons, res judicata and imposing preclusion order), aff'd, 555 F. App’x 148 (3d Cir.

2014);

(6) Gage v. Kumpf, No. 12-2620 (D.N.J. Nov. 15, 2012) (Wolfson, J.) (dismissed for, among other

reasons, res judicata and imposing preclusion order);

(7) Gage v. Provenzano, No. 13-2256 (D.N.J. Dec. 13, 2013) (Wolfson, J.) (dismissed for, among

other reasons, res judicata and judicial immunity and imposing preclusion order), aff'd, 571 F.

App’x ILI Gd Cir. 2014);

(8) Gage v. Miller, No. 13-6985 (D.N.J. May 6, 2014) (Wolfson, J.) (dismissed for, among other

reasons, judicial immunity and imposing preclusion order);

(9) Gage v. Christie, No. 14-2587 (D.N.J. May 6, 2014) (Wolfson, J.) (dismissed for violating

preclusion order);

(10) Gage v. Provenzano, No. 14-5700 (D.N.J. Sept. 21, 2016) (Linares, J.) (dismissed for, among

other reasons, res judicata);

(11) Gage v. N.J. Gov. Chris Christie’s Admin., No. 15-6964 (D.N.J. Sept. 24, 2015) (Kugler, J.)

(dismissed with prejudice for violating preclusion order and judicial immunity), aff’d, No. 15-3382

(3d Cir. Jan. 8, 2016);

(12) Gage v. N.J. Office of Ait’y Gen., No. 16-2790 (D.N.J. Oct. 17, 2016) (Linares, J.) (dismissed

for, among other reasons, immunity);

(13) Gage v. Somerset County, No. 16-3119 (D.N.J. Dec. 19, 2017) (Martinotti, J.) (dismissed with

prejudice for want of jurisdiction), aff'd, No. 17-1303 (3d Cir. May 26, 2017);

(14) Gage v. Somerset County, No. 19-9097 (D.N.J. Sept. 15, 2020) (Shipp, J.) (dismissed for

insufficient service), appeal dismissed, No. 20-1110 (3d Cir. June 4, 2020);

(footnote continued)

allegations in Gage’s Complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.

2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

Although difficult to parse, Gage’s Complaint appears to allege a disagreement with certain

findings made by Defendants. Those findings relate to a lot Gage purchased in Hopatcong

sometime in late 2019. (Compl. { 19, ECF No. 1.) After acquiring the lot Gage applied for a “Land

Use Application for a minor development,” presumably to develop the land. (See id. J 33;

Ruschke’s Moving Br. 3, ECF No. 5-1 (noting that Gage’s application sought variances to

construct a single-family home).) A private engineer serving as Hopatcong’s Borough Engineer

and Land Use Board Engineer, Ruschke, reviewed Gage’s application and determined that it failed

to address certain municipal codes regarding wetlands and critical areas. (Ruschke’s Moving Br.

6-8.) After unsuccessfully amending his application, Gage requested a completeness hearing with

the Hopatcong Land Use Board (the “Board”). (/a.) The Board determined that it would only

approve Gage’s application if he could provide a letter from the Department showing that any land

developments would not disturb protected wetlands. (See Compl. § 41.) To that end, the

Department issued a letter of interpretation determining that “State open waters, freshwater

wetlands and their associated transition areas are present on and adjacent to the referenced

property.” Ud. J 48 (emphasis omitted).) Gage did not appeal this determination.

Instead, Gage sued the Department and Ruschke. (See generally Compl.) In essence,

Gage’s Complaint alleges that both Ruschke and the Department got it wrong. (See id. □□ 22

(15) Gage v. State of New Jersey, No. 19-9098 (D.N.J. Dec. 30, 2019) (Shipp, J.) (dismissed for

violating preclusion order), aff’d, No. 20-1075 (3d Cir. Oct. 8, 2020);

(16) Gage v. Preferred Contractors Ins. Co., No, 19-20396 (D.N.J. Jan. 7, 2022) (Shipp, J.)

(dismissed with prejudice for failure of pleading); and

(17) Gage vy. Lynch, No. 20-16236 (D.N.J. Nov. 12, 2020) (Arleo, J.) (still pending).

(alleging that no critical areas or wetlands exist on the lot).) Citing Gage’s numerous lawsuits, the

Complaint also asserts a breathtaking conspiracy among several government officials to deprive

Gage of his “person, property[,] and business activity.” Ud. J 18.) The Complaint asserts eleven

causes of action (none bear repeating here) and requests compensatory and punitive damages. (See

id. Jf 55-166 & Prayer for Relief.)

Il. LEGAL STANDARD

A. Rule 12(b)(1) Standard

At any time, a defendant may move to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1), (h)(3). “A motion to dismiss . . . for lack of subject matter

jurisdiction made prior to the filing of the defendant’s answer is a facial challenge to the

complaint.” Bennett v. City of All. City, 288 F. Supp. 2d 675, 678 (D.N.J. 2003) (citations omitted).

“A facial 12(b)(1) challenge, which attacks the complaint on its face without contesting its alleged

facts, is like a 12(b)(6) motion in requiring the court to consider the allegations of the complaint

as true.” Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016) (internal quotation

marks and citation omitted). The Third Circuit has “repeatedly cautioned against allowing a Rule

12(b)(1) motion . . . to be turned into an attack on the merits.” /d. at 272 n.14.

B. Rule 12(b)(6) Standard

When deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips, 515 F.3d at 231. “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Importantly, on a Rule

12(b)(6) motion to dismiss, “the defendant bears the burden of showing that no claim has been

presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers... .” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nonetheless, “a litigant is not absolved from

complying with 7wombly and the federal pleading requirements merely because [he] proceeds pro

se.” Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (citation omitted). Thus, “pro se litigants

still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

II. DISCUSSION

Before the Court are twin Motions to Dismiss from the Department and Ruschke. The

Court addresses each in turn.

A. The Court Grants the Department’s Motion to Dismiss.

The Department argues that the Court lacks subject matter jurisdiction to hear this dispute

under the Eleventh Amendment. The Court agrees. Under that Amendment, private parties cannot

sue states in federal court. See MCT Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir.

2001). “This immunity extends to state agencies and departments.” /d. (citing C.H. ex rel. ZH. v.

Oliva, 226 F.3d 198, 201 (3d Cir. 2000) (en banc)); see also Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit

in which the State or one of its agencies or departments is named as the defendant is proscribed by

the Eleventh Amendment.”). Further, although the Supreme Court has carved out narrow

exceptions to the Eleventh Amendment, Gage’s Complaint fails to allege any of those exceptions,

and the Court is not aware of any that could confer jurisdiction. See, e.g., Mierzwa v. United States,

282 F. App’x 973, 976 (3d Cir. 2008) (“The State of New Jersey has not waived its sovereign

immunity with respect to § 1983 claims in federal court.”). Thus, Gage’s Complaint cannot reach

the Department.

B. The Court Grants Ruschke’s Motion to Dismiss.

Ruschke argues that Gage’s Complaint must fail because his challenge is unripe and

because Ruschke enjoys qualified immunity. Because ripeness is jurisdictional, the Court begins

its analysis there. Kyle-Labell y. Selective Serv. Sys., 364 F. Supp. 3d 394, 401 (D.N.J. 2019) (citing

NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001)). Ruschke

argues that this case is unripe because the Board reached a conditional and nonfinal approval,

thereby rendering Ruschke’s actions premature for adjudication. (See Ruschke’s Moving Br. 14.)

In support of this ripeness theory, Ruschke relies on Supreme Court precedent cautioning courts

from adjudicating disputes arising from zoning boards that have not been fully exhausted at the

municipal level. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) (“It

follows . . . that an essential prerequisite to its assertion is a final and authoritative determination

of the type and intensity of development legally permitted on the subject property.”); Williamson

Cnty. Reg’l Plan. Comm’n vy. Hamilton Bank, 473 U.S. 172, 191 (1985) (reasoning that takings

claims cannot be adjudicated until “the administrative agency has arrived at a final, definitive

position regarding how it will apply the regulations at issue to the particular land in question”),

overruled by Knick v. Township of Scott, 139 S. Ct. 2162 (2019). At this early stage, however, the

Court finds that it has jurisdiction. Ruschke cites to no case law showing that the Supreme Court’s

logic extends past zoning boards to include municipal engineers. Nor is the Court aware of any

such precedent. Cf Ethan Michael, Inc. v. Union Township, 108 F. App’x 43, 47 (3d Cir. 2004)

(“[W]hen applying the finality rule, we should not stand on formality.” (citing Lauderbaugh v.

Hopewell Township, 319 F.3d 568, 575 (3d Cir. 2003))). Because the Court need not wade into

muddy jurisdictional waters to resolve this case, it rejects Ruschke’s ripeness challenge.

The Court, however, agrees that Gage’s Complaint fails to allege facts that defeat

Ruschke’s qualified immunity defense. “Qualified immunity shields individual state officials from

liability for damages on account of their performance of discretionary official functions ‘insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Dinoia v. Cumbo, No. 12-3175, 2015 WL 6739114, at *6

(D.N.J. Nov. 4, 2015) (quoting Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Filarsky

v, Delia, 566 U.S. 377, 398 (2012) (Sotomayor, J., concurring) (noting that qualified immunity

protects a “private individual work[ing] closely with immune government employees” because

“there is a real risk that the individual will be intimidated from performing his duties fully if he,

and he alone, may bear the price of liability for collective conduct”). Simply put, liberally

construing Gage’s Complaint and taking all inferences in his favor, the Complaint alleges that

Ruschke engaged in a discretionary official act in reviewing Gage’s application. Nowhere does

the Complaint allege that Ruschke’s conduct violated clearly established constitutional rights.

Indeed, it fails to allege any right whatsoever. To the extent the Complaint relies on a conspiracy

of unnamed government officials to establish some sort of wrongdoing, the Court rejects those

unadorned allegations as conclusory and conjectural.

IV. CONCLUSION

The Court dismisses Gage’s Complaint. It will issue an order consistent with this

Memorandum Opinion.

UNITED STATES DISTRICT JUDGE