SOMERSET v. CITY OF EAST ORANGE NEW JERSEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JERRY SOMERSET,

Plaintiff,

Civ. No. 21–12486 (KM) (ESK)

v.

OPINION

CITY OF EAST ORANGE, NEW

JERSEY et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Jerry Somerset, proceeding pro se, brings this action against the

City of East Orange, New Jersey (“East Orange”) and Judge Sherwin Campbell,

Chief Judge of the East Orange Municipal Court (“Judge Campbell”)

(collectively, the “Defendants”). Mr. Somerset appears to seek relief for alleged

violations of the Whistleblowers Protection Act, Conscientious Employee

Protection Act,1 the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1983,2

federal and state undercover guidelines, and mail fraud. The Defendants have

now moved to dismiss the Complaint.

For the following reasons, the Defendants’ motion to dismiss is

GRANTED. 3

BACKGROUND

The Complaint alleges the following:

I became a Whistleblower at the time Presi[d]ent George H.W.

Bush signed The Whistleblowers Protection Act into law in 1989

during the time a terrorism Rico Act investigation was on going in

1 The Complaint generally alleges that the Defendants violated both federal and

state “whistleblowers anonymity.” DE 1 at 3.

2 The Complaint alleges that the Defendants violated Mr. Somerset’s civil rights

and due process. DE 1 at 3.

3 “DE __” refers to the docket entries in this case.

the City of Newark New Jersey after the acquittal of a major crime

organization, which The City of East Orange was also invo[lv]ed in

handling as well, to protect a high profile individual, but the City of

East Orange had insist in placing myself and others in danger

because of their parking ordinance and getting rewarded from the

State of New Jersey’s criminal case, myself as a ally federal

whistleblower who is also protected under the federal and state

undercover guidelines, I’m stating my claim for defendants

violations of the laws above and is requesting oral argument by

trial.

(DE 1 at 4.) Additionally, in the Complaint’s “Amount in Controversy”

subsection, Mr. Somerset contends that his due process rights have been

violated “because of over 8 consecutive months of virtual hearings

postponements to delay [him] of Life, Liberty, and Pursuit of Happiness, as a

Federal and State Whistleblower of the United States Department of Justice

and an American with Disabilities … mentally stressed of possible deep-six

plans against anonymous federal and state whistleblowers.” (DE 1 at 4.)

Attached to the Complaint is a document titled “Continuing Statements

and Attachments” which appears to submit additional factual allegations4 and

purports5 to attach the following: (1) a letter from former President Donald J.

Trump and former Attorney General William Barr confirming Mr. Somerset’s

4 The attachment states, in part, that the “case the Federal and New Jersey

Government needed to accomplish was so important, they needed to promote civilians

to federal and state agents and as for myself a transport among other things now I’m

without driving privileges because The City of East Orange involvement was to provide

over night security along with their ordinance waiver yet decided to breach an

agreement with the Federal Government and The State of new Jersey as to waive any

interfering issues to a federal and states domestic terrorism RICO Act case.” DE 1 at 6.

5 I say “purport,” because the letters attached actually consist of: (1) an August 6,

2019 letter from the Executive Office for the United States Attorneys (“EOUSA”)

Strategic Communications Staff confirming their receipt of Mr. Somerset’s July 1,

2019 letter requesting a reduction in his sentence for providing substantial assistance

to the government and inquiring about an unindicted criminal investigation; and (2)

an October 28, 2019 letter from EOUSA’s Strategic Communication Staff responding

to an October 16, 2019 letter from Mr. Somerset and stating they could no longer help

Mr. Somerset with his matter.

“credibility assisting” United States Government and New Jersey, “among other

states and Whistleblowers claims”; (2) “hearings postponements” issued by

East Orange; and (2) a letter from former President Barack Obama “leaving out

my involvement with the Justice Department as an undercover and federal

whistleblower.”6

LEGAL STANDARDS

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.”) (citation

omitted). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard

is not akin to a ‘probability requirement’ . . . it asks for more than a sheer

possibility.” Id.

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a

claim upon which relief can be granted. Defendants, as the moving party, bears

the burden of showing that no claim has been stated. Animal Sci. Prods., Inc. v.

6 In response to the Defendants’ motion to dismiss, Mr. Somerset responded by

filing the same letters, along with (1) a notice from the Social Security Administration

stating that their records indicate that Mr. Somerset is “blind or visually impaired”;

and (2) an unsourced medical record appearing to diagnose Mr. Somerset with

anemia. DE 10.

China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes

of a motion to dismiss, the facts alleged in the complaint are accepted as true

and all reasonable inferences are drawn in favor of the plaintiff. New Jersey

Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760

F.3d 297, 302 (3d Cir. 2014).

The court will be more forgiving of complaints filed pro se and construe

their allegations liberally. Haines v. Kerner, 404 U.S. 219 (1972). Pro se

complaints are nonetheless bound to the “essential obligation” of facial

plausibility. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019); see also

Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (noting that a pro se

complaint is “construed liberally ‘to raise the strongest arguments [it]

suggest[s],” but must still “state a plausible claim for relief” (citations omitted)).

Somerset has made several filings in which he has stated his legal and

factual positions. I have construed these filings in the liberal spirit of Haines.

DISCUSSION

A. Judge Sherwin Campbell

Mr. Somerset brings this action, in part, against Judge Campbell of the

East Orange Municipal Court, seeking compensatory damages for violations of

the statutes cited in the Complaint. The claims may have something to do with

parking violations. Regardless, Mr. Somerset’s claims against Judge Campbell

must be dismissed on grounds of judicial immunity.

A judicial officer has absolute immunity from suit based on the

performance of his or her duties. See Mireles v. Waco, 502 U.S. 9, 11 (1991);

see also Kwasnik v. LeBlon, 228 F. App’x 238, 243 (3d Cir. 2007). The

immunity is absolute and cannot be overcome by allegations of bad faith or

malice. Mireles, 502 U.S. at 11. There are two exceptions: (1) for non-judicial

actions, not taken in the judge’s official capacity; and (2) for actions which,

although judicial in nature, were taken in the complete absence of jurisdiction.

See id. at 11-12. Whether an act is judicial relates “to the nature of the act

itself, i.e., whether it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the judge in his

judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978); see also

Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000) (citations

omitted).

The Court notes that the Complaint makes no direct factual allegations

against Judge Campbell. There is, a fortiori, no suggestion that Judge Campbell

took any action outside of his official judicial capacity or performed judicial

actions “in the complete absence of jurisdiction.” To the extent that Mr.

Somerset’s allegations concerning delayed “virtual hearings,” East Orange’s

“parking ordinances,” and the revocation of Mr. Somerset’s driver’s license may

be related to some case in front of Judge Campbell, those allegations clearly

center on Judge Campbell’s performance of his duties.

Accordingly, Mr. Somerset’s monetary damage claim against Judge

Campbell will be dismissed, based on absolute judicial immunity.

B. City of East Orange

Mr. Somerset also names East Orange as a defendant. The Complaint

can be construed as asserting claims under the Whistleblowers Protection Act,

CEPA, the ADA, Section 1983, or possibly 18 U.S.C. § 1341, the federal

criminal mail fraud statute.7 The Defendants assert that the Complaint fails to

satisfy federal pleading requirements. I agree and will dismiss the Complaint on

this basis as well.

As an initial matter, the Whistleblowers Protection Act, CEPA, and ADA

claims must be dismissed because they are clearly inapplicable to Mr.

Somerset as currently pled. First, the Whistleblowers Protection Act only

7 The Complaint also mentions “Federal and States Undercover Guidelines,”

which I construe as the Attorney General’s Guidelines on FBI Undercover Operations.

“The Undercover Guidelines grant the FBI broad discretion in conducting undercover

operations.” Suter v. United States, 441 F.3d 306, 311 (4th Cir. 2006).

As the Complaint fails to: (1) cite any relevant provision of the Undercover

Guidelines; (2) assert a cause of action against the United States or a federal

defendant; or (3) otherwise explain how East Orange falls under the ambit of the

Undercover Guidelines, the Court dismisses the claim.

applies to federal employees and Mr. Somerset has neither alleged that he is a

federal employee nor asserted claims against federal defendants. See Fleeger v.

Principi, 221 F. App’x 111, 115 (3d Cir. 2007); Whistleblower 1 v. Bd. of Educ. of

City of Elizabeth, N.J., No. CIV.A. 11-6480 SDW, 2011 WL 5882165, at *4

(D.N.J. Nov. 22, 2011). Second, CEPA states that an “[u]pon a violation of any

of the provisions of this act, an aggrieved employee or former employee may,

within one year, institute a civil action in a court of competent jurisdiction.”

N.J. Stat. Ann. 34:19-33. Mr. Somerset, however, has neither alleged that he

is/was an employee of East Orange nor alleged any adverse employment action

taken by East Orange for purposes of CEPA. See Marrero v. Camden Cnty. Bd.

Of Soc. Servs., 164 F. Supp. 2d 455, 473 (D.N.J. 2001).

Third, to allege a claim pursuant to the ADA, Mr. Somerset must

establish that: (1) he is disabled person within the meaning of the ADA; (2) he

is otherwise qualified to perform the essential functions of the job, with or

without reasonable accommodations by his employer; (3) he has suffered an

adverse employment decision; and (4) the adverse employment decision was the

result of discrimination. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d

Cir. 1998) Mr. Somerset has not alleged employment in any capacity with East

Orange, identified any adverse employment action, or alleged any facts that

imply that East Orange took an adverse employment action against Mr.

Somerset due to his blindness. To the extent Mr. Somerset attempts to allege

alternative theories of ADA liability, the Court finds that the Complaint fails to

allege any discriminatory action taken against Mr. Somerset due to his

blindness and in general fails to allege any concrete facts suggesting a claim

upon which relief may be granted.

For the reasons set forth above, Mr. Somerset has failed to set forth a §

1983 claim against anyone, and a fortiori has not alleged a basis to attribute

liability on such a claim to East Orange. A municipality, such as East Orange,

cannot be liable for the unconstitutional acts of its employees on a theory of

respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Section 1983 requires facts suggesting an unconstitutional municipal policy,

practice, or custom. See id. at 690-91. A policy exists “when a decision-maker

with final authority issues an official proclamation, policy, or edict.” Noble v.

City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015) (internal quotations

and citations omitted). Similarly, a “[c]ustom may be established by showing

that a given course of conduct, although not specifically endorsed or authorized

by law is so well-settled and permanent as virtually to constitute law.” Id.

(internal quotation and citations omitted).

For Mr. Somerset to plausibly plead a Monell claim, he must identify the

unconstitutional policy or custom, attribute it to East Orange itself, and show a

causal link between the execution of that policy and a violation of Mr.

Somerset’s constitutional rights. See Harley v. City of New Jersey City, No. 16-

5135, 2017 WL 2779466, at *7-8 (D.N.J. June 27, 2017). At the pleading stage,

this burden is sometimes met by allegations of a formal policy, or else by

allegations that policymakers were aware of similar unlawful conduct but that

their policies failed to guard against future violations. See Est. of Roman v. City

of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (citing Kneipp v. Tedder, 95 F.3d

1199, 1213 (3d Cir. 1996)). Mr. Somerset has not plausibly alleged that East

Orange enacted a policy or custom that might have resulted in his alleged

harms.

Finally, Mr. Somerset has failed to plausibly allege a claim for mail fraud

under 18 U.S.C. § 1341. That is a criminal statute; there is no civil cause of

action contained within it.8

Accordingly, the Complaint is dismissed against East Orange.

8 Mail fraud may, however, serve as part of a pattern of racketeering under RICO.

It requires “(1) the existence of a scheme to defraud; (2) the use of the mails, whether

the United States Postal Service or a private carrier, in furtherance of the fraudulent

scheme; and (3) culpable participation by the defendant (i.e. participation by the

defendant with specific intent to defraud).” Care One Mgmt., LLC v. United Healthcare

Workers East, SBIU 1199, 2013 WL 5603881(D.N.J. Oct. 10, 2013). The Complaint is

bereft of allegations which relate in any way to the required elements of a mail fraud

claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED.

The dismissal is without prejudice to the submission, within 30 days, of a

second amended complaint.

An appropriate order accompanies this opinion.

Dated: April 1, 2022

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge