MARINACCIO v. UNTIED STATES OF AMERICA

*NOT FOR PUBLICATON*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PAUL MARINACCIO,

Plaintiff,

v. Civil Action No. 21-11167

UNITED STATES OF AMERICA; NEW OPINION

JERSEY DISTRICT COURT CLERK,

WILLIAM T. WALSH, ET AL.

Defendants.

WOLFSON, Chief Judge:

Plaintiff Paul Marinaccio (“Plaintiff”), proceeding pro se, filed this suit against Defendant

William T. Walsh and John and Jane Doe district court personnel (“Defendants”), alleging that

Defendants violated his rights under the U.S. Constitution, the New Jersey constitution, and New

Jersey statutes, and Plaintiff further alleged that Defendants committed various torts by denying

him access to the Clerk of Court’s office in Newark, New Jersey. Presently before the Court is a

Motion to Dismiss filed by the United States, on behalf of itself and Defendant Walsh, arguing

that Plaintiff’s claims lack subject matter jurisdiction and fail to state a claim upon which relief

can be granted. For the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED.

I. FACTUAL BACKGROUND

The relevant facts are derived from Plaintiff’s proposed Fourth Amended Complaint. ECF

No. 30-1.1 Plaintiff, a New Jersey citizen, does not have a physical address, but maintains a P.O.

1 In addition to opposing Defendant’s Motion to Dismiss, Plaintiff also cross-moves to amend the

Third Amended Complaint. See ECF No. 30-1. For the purposes of this Opinion, I will consider

Box in Greenbrook, New Jersey. Id. ¶ 1. Defendants are the New Jersey District Court Clerk of

Court, William T. Walsh, various Jane and John Doe New Jersey District Court Clerk employees

working at the Martin Luther King Building & U.S. Courthouse in Newark, New Jersey (“Newark

Courthouse”), and the United States. Id. ¶ 2.

Plaintiff alleges that on December 19, 2018, he visited the Newark Courthouse to access

documents pertaining to a separate pending matter2 that he had difficulty accessing elsewhere. Id.

¶¶ 1-3. According to Plaintiff, when he arrived at the Clerk’s office, unidentified court employees,

despite his protestations that he needed to access his case files, abruptly kicked him out of the

office, and subsequently closed it. Id. ¶ 3. After the office closed, Plaintiff alleges that he was

rattled by the incident and hungry, and in his confusion, became trapped in a nearby stairwell for

approximately 30 minutes. Id. ¶ 5. Plaintiff claims to have eventually found his way out of the

stairwell, and that upon exiting, he saw a room where Defendant Walsh and other court employees

were having a party and eating food in an open room. Id. ¶ 6. Plaintiff states that upon entering

the room, the employees “concocted a scheme of conspiring with federal agents to remove me

from the building.” Id. Plaintiff alleges that Federal Marshals arrived on the scene, seized him,

and escorted him out of the building. Id. Plaintiff alleges that he called the Clerk’s office later

that day at 2:00 PM, but no one answered the phone. Id.

On December 18, 2020, Plaintiff filed a Complaint in New Jersey Superior Court, Essex

County, asserting that this incident, alone, violated his rights under the U.S. Constitution, the New

the proposed Fourth Amended Complaint to be the operative complaint, and assess the sufficiency

of the pleadings of that Complaint. Separately, although Plaintiff’s brief describes this proposed

Amended Complaint as the “Sixth Amended Complaint,” according to the docket, it is the Fourth

Amended Complaint, and therefore, the Court will refer to it as such.

2 Marinaccio v. East Hanover Police Department, No. 18-15443 (D.N.J.) (“East Hanover PD

Action”).

Jersey Constitution, and New Jersey civil rights laws, and that Defendants committed various torts

against him. ECF No. 1-1 at 4-8. It appears that Plaintiff did not serve this Complaint on

Defendants, and instead, filed an Amended Complaint in the Superior Court on January 3, 2021,

ECF No. 1-3 at 2-3, and then filed a Second Amended Complaint on February 9, 2021, Id. On

behalf of Defendant Walsh, the United States Attorney’s Office removed the action to this Court

on May 13, 2021. ECF No. 1. Shortly thereafter, on May 21, 2021, Plaintiff filed a Third Amended

Complaint. ECF No. 5. In the Third Amended Complaint, Plaintiff claimed that Defendants, in

their professional and personal capacities, violated (1) his First Amendment right of access to

court; (2) the New Jersey State Constitution; (3) the New Jersey Civil Rights Act (“NJCRA”); (4)

the New Jersey Law Against Discrimination (“NJLAD”); (4) 42 U.S.C. § 1983; and (5) Fed. R.

Civ. P. 77. Id. ¶ 8. Plaintiff further asserted claims against Defendants for (6) interference with

his statutory rights against misrepresentation; (7) breach of contract; and (8) breach of duty. Id.

For these violations and breaches, Plaintiff requests injunctive relief and monetary damages.

In December 2021, the United States filed a notice to substitute itself for Defendant Walsh

with respect to certain claims. ECF No. 18. In the notice, the United States, through J. Andrew

Ruymann, Chief of the Civil Division of the United States Attorney’s Office for the District of

New Jersey, certified that Defendant Walsh was acting within the scope of his employment as an

employee of the United States of America at the time of the alleged conduct. ECF No. 18-1,

Ruymann Cert. at 1-2.3 Accordingly, the United States became the sole Defendant for the claims

3 In 1988, Congress passed the Westfall Act, which made suits “against the United States under

the FTCA the exclusive remedy for negligent or wrongful acts by federal employees committed

within the scope of employment.” Lomando v. U.S., 667 F.3d 363, 375 (3d Cir. 2011). To

effectuate this policy, federal law states that:

[u]pon certification by the Attorney General that the defendant employee was

acting within the scope of his office or employment at the time of the incident out

under the New Jersey State Constitution, NJCRA, and NJLAD, as well as for claims for

misrepresentation, breach of contract, and breach of duty. ECF No. 18. The sole claims remaining

against Defendant Walsh arising in his individual capacity are those under the First Amendment

and § 1983.4 Def. Br. at 1.

Following the substitution, the United States, on behalf of itself and Defendant Walsh, filed

the present Motion to Dismiss the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1)

and 12(b)(6). ECF No. 19. In response, Plaintiff opposes Defendants’ Motion to Dismiss, and

also cross-moves to file a Fourth Amended Complaint. ECF No. 30. The proposed Fourth

Amended Complaint is factually similar to the Third Amended Complaint, but adds claims against

Defendant Walsh, in his individual capacity, for violations of Plaintiff’s purported First

Amendment rights to freedom of association and receive and disseminate information, Pl. Opp.

Br. at 11-12, and Fourteenth Amendment due process right of “freedom to loiter for innocent

purposes,” Id. at 12. The proposed Fourth Amended Complaint also includes claims against the

United States for intentional infliction of emotional distress and a False Claims Act claim under

31 U.S.C. § 3729. Fourth Am. Compl. ¶¶ 9-20. The United States filed a reply brief, arguing that

these new claims should be dismissed, and that Plaintiff’s claims in his proposed Fourth Amended

Complaint should be dismissed as futile. ECF No. 32.

II. LEGAL STANDARD

of which the claim arose, any civil action or proceeding commenced upon such

claim in a United States district court shall be deemed an action against the United

States under the provisions of this title and all references thereto, and the United

States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).

4 Absent an explicit waiver, sovereign immunity bars claims against an employee of the United

States, such as Defendant Walsh, from being sued in his or her official capacity. Webb v. Desan,

250 Fed. App’x 468, 471 (3d Cir. 2007).

A. Rule 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must dismiss a claim

when there is no subject matter jurisdiction. Ballentine v. United States, 486 F.3d 806, 810 (3d

Cir. 2007). A Rule 12(b)(1) motion can raise a facial attack or a factual attack, which determines

the standard of review. Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014)

(citations omitted); In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632

(3d Cir. 2017). On a facial attack, courts “only consider the allegations of the complaint and

documents referenced therein and attached thereto, in the light most favorable to the plaintiff,”

since the motion contests the sufficiency of the pleadings. Gould Elecs. Inc. v. United States, 220

F.3d 169, 176 (3d Cir. 2000); Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).

On a factual attack, courts may “consider evidence outside the pleadings,” such as

affidavits, since the motion contests the underlying basis for jurisdiction. Gould Elecs. Inc., 220

F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)); Mortensen v.

First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (“[N]o presumptive truthfulness

attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the

trial court from evaluating for itself the merits of jurisdictional claims.”); CNA v. United States,

535 F.3d 132, 139 (3d Cir. 2008) (“[A] factual attack concerns the actual failure of [a plaintiff's]

claims to comport [factually] with the jurisdictional prerequisites.”) (quotations and citation

omitted). In such circumstances, the court “is free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case,” Mortensen, 549 F.2d at 891, but “must be careful []

not to allow its consideration of jurisdiction to spill over into a determination of the merits of the

case, and thus must tread lightly[.]” Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 815 (D.N.J.

2008) (quotations and citation omitted). The proponent of jurisdiction bears the burden to prove

that it exists throughout the litigation. Mortensen, 549 F.2d at 891.

B. Rule 12(b)(6)

A court may grant a motion to dismiss if the complaint fails to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). “While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide

the grounds of his entitle[ment] 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, 545 (2007) (quotations and citations omitted); Baraka v. McGreevey, 481 F.3d 187, 195 (3d

Cir. 2007) (stating that standard of review for motion to dismiss does not require courts to accept

as true “unsupported conclusions and unwarranted inferences” or “legal conclusion[s] couched as

factual allegation[s]”) (quotations and citations omitted). Thus, for a complaint to withstand a

motion to dismiss under Rule 12(b)(6), the “[f]actual allegations must be enough to raise a right to

relief above the speculative level on the assumption that all the allegations in the complaint are

true (even if doubtful in fact) . . . .” Twombly, 550 U.S. at 555 (internal citations omitted).

The Supreme Court has emphasized that, when assessing the sufficiency of a civil

complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements[.]” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). When evaluating a motion to dismiss for failure to state a claim, district courts engage

in a three-step progression.

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim[.]”

Iqbal, 556 U.S. at 676. Second, the court should identify allegations that, “because they are no

more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Third, “[w]hen

there are well-pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.” Id. “This means that the inquiry is

normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the

complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of

the complaint and evaluating whether all of the elements identified in part one of the inquiry are

sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). A complaint will be

dismissed unless it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). This

“plausibility” determination is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211

(3d Cir. 2009) (citations omitted). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully;”

indeed, mere consistency with liability is insufficient. Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 557). Moreover, a plaintiff may not be required to plead every element of a prima

facie case, but he must at least make “allegations that raise a reasonable expectation that discovery

will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (citation omitted).

The Third Circuit has reiterated that “judging the sufficiency of a pleading is a context-

dependent exercise” and “[s]ome claims require more factual explication than others to state a

plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d

Cir. 2010), cert. denied, 565 U.S. 817 (2011). Generally, when determining a motion under Rule

12(b)(6), the court may only consider the complaint and its attached exhibits. However, while “a

district court may not consider matters extraneous to the pleadings, a document integral to or

explicitly relied upon in the complaint may be considered without converting the motion to dismiss

into one for summary judgment.” Angstadt v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir.

2004) (citation omitted); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426

(3d Cir. 1997).

C. Leave to Amend

Federal Rule of Civil Procedure 15 governs amendments of the pleadings. Rule 15(a)

states that a party may amend her pleading “once as a matter of course . . . before being served

with a responsive pleading.” Fed. R. Civ. P. 15(a). At all other times, “[t]he court should freely

give leave when justice so requires.” Id. The decision to grant leave to amend is left within the

discretion of the district court. United States v. Diversified Environmental Groups, Inc., 1990 WL

209326, *1 (E.D. Pa. Dec. 11, 1990) (citing Coventry v. U.S. Steel Corp., 856 F.2d 514, 518-521

(3d Cir. 1988)). Courts have a liberal tendency in granting leave to amend, because the pleading

is not “a game of skill in which one misstep by counsel may be decisive to the outcome.” United

States v. Hougham, 364 U.S. 310, 317 (1960). “In the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.,—the leave sought

should, as the rules required, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962).

However, the Third Circuit has also held that even though “leave should be ‘freely given when

justice so requires,’ Fed. R. Civ. P. 15(a), . . . ‘a District Court may deny leave to amend on the

grounds that amendment would cause undue delay or prejudice, or that amendment would be

futile.’” Winer Family Trust v. Queen, 503 F.3d 319, 330-331 (3d Cir. 2007) (quoting In re

Alpharma, Inc. Sec. Litig., 372 F.3d 137, 153 (3d Cir. 2004)). “In assessing futility, the district

court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” In re

Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (internal

quotations omitted and citation omitted).

D. Pro Se Pleadings

Here, Plaintiff is proceeding pro se. “The obligation to liberally construe a pro se litigant's

pleadings is well-established.” Higgs v. Atty. Gen. of the United States, 655 F.3d 333, 339 (3d Cir.

2011); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-

21 (1972). “Courts are to construe complaints so as to do substantial justice, keeping in mind that

pro se complaints in particular should be construed liberally.” Alston v. Parker, 363 F.3d 229, 234

(3d Cir. 2004) (internal quotation marks and citation omitted). “Liberal construction does not,

however, require the Court to credit a pro se plaintiff's ‘bald assertions’ or ‘legal conclusions.’”

Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower Merion Sch.

Dist., 132 F.3d 902, 906 (3d Cir. 1997)). “[T]here are limits to [the court's] procedural flexibility

. . . . [P]ro 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). “Even a pro se complaint may be

dismissed for failure to state a claim if the allegations set forth by the plaintiff cannot be construed

as supplying facts to support a claim entitling the plaintiff to relief.” Grohs, 984 F. Supp. 2d at

282.

III. DISCUSSION

First, Defendants argue that this Court should decline to extend Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), to Plaintiff’s asserted First

and Fourteenth Amendment claims against Defendant Walsh in his individual capacity. Second,

Defendants assert that Plaintiff’s remaining claims against the United States must be dismissed.

With respect to Plaintiff’s claims under the New Jersey Constitution and New Jersey statutes,

Defendants reason that the United States has not waived sovereign immunity as to these claims.

With respect to Plaintiff’s tort claims, Defendants contend that these claims are barred by the

Federal Tort Claims Act (“FTCA”), because Plaintiff failed to exhaust his administrative remedies

as required by the Act. Defendant also maintains that, among other reasons, Plaintiff may not

pursue a False Claims Act action because he is proceeding pro se. Finally, Defendant contends

that Plaintiff cannot maintain a claim under Fed. R. Civ. P. 77, because Federal Rules do not create

substantive rights.

A. Claims Against Walsh

The Fourth Amended Complaint brings Bivens claims against Defendant Walsh, asserting

that his actions, in his individual capacity, violated the following purported constitutional rights:

(1) First Amendment right of access to courts; (2) First Amendment right to freedom of

association;5 (3) First Amendment right to receive and disseminate information; and (4) Fourteenth

Amendment right of freedom to loiter for innocent purposes. Defendant also raises a claim against

Defendant Walsh under § 1983.

As an initial matter, a plaintiff may have a cause of action under 42 U.S.C. § 1983 for

certain violations of constitutional rights. § 1983 provides in relevant 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

5 The “right of freedom of association secures ‘a right to associate for the purpose of engaging in

those activities protected by the First Amendment—speech, assembly, petition for the redress of

grievances, and the exercise of religion.’” Starnes v. Butler County Court of Common Pleas, 50th

Judicial District, 971 F.3d 416, 431 (3d Cir. 2020). Notably, the right of access to the courts,

which claim Plaintiff brings separately, is merely a right encompassed within the First Amendment

right to petition for redress of grievances. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379,

387 (2011) (“the right of access to courts for redress of wrongs is an aspect of the First Amendment

right to petition the Government.”) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-97

(1984)). As such, Plaintiff’s First Amendment right of access to the courts claim is subsumed

under Plaintiff’s broader First Amendment freedom of association claim.

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, except that in any action brought

against a judicial officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

Thus, to state a claim for relief under § 1983, a plaintiff must allege first, the violation of a

right secured by the Constitution or laws of the United States, and second, that the alleged

deprivation was committed or caused by a person acting under color of state law. See Harvey v.

Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.

Atkins, 487 U.S. 42, 48 (1988).

Here, because Defendant Walsh, a federal actor, was a person acting under the color of

federal law, not state law, Plaintiff’s claim under § 1983 fails. Polsky v. United States, 844 F.3d

170, 173 (3d Cir. 2016) (citing Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001) (“It

is well established that liability under § 1983 will not attach for actions taken under color of federal

law.”)).

Regarding the Bivens claims, Bivens “is the federal counterpart to 42 U.S.C. § 1983.”

Walker v. Zenk, 323 Fed. App’x 144, 145 n.1 (3d Cir. 2009) (citing Egervary v. Young, 366 F.3d

238, 246 (3d Cir. 2004)). In Bivens, the Supreme Court implied a private right of action under the

Fourth Amendment, 403 U.S. at 389, and “opened the door for courts to exercise their judicial

power to fashion [] damages remed[ies] against federal officers for other types of constitutional

violations,” Mack v. Yost, 968 F.3d 311, 318 (3d Cir. 2020). Since Bivens, the Supreme Court has

expanded the Bivens remedy to other constitutional violations only twice, once under the Fifth

Amendment’s due process clause, Davis v. Passman, 442 U.S. 228 (1979), and another time under

the Eighth Amendment’s prohibition against cruel and unusual punishment, Carlson v. Green, 446

U.S. 14 (1986).

In recent years, the Supreme Court has cautioned on the separation of powers when courts

expand Bivens causes of actions. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (citing Iqbal, 556

U.S. at 675). In the Court’s view, “Congress is far more competent than the Judiciary to weigh

such policy considerations . . . and the Judiciary’s authority to do so at all is, at best, uncertain.”

Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (internal quotations and citations omitted). As such,

now, when courts are “asked to imply a Bivens action, ‘our watchword is caution,’” Id. (quoting

Hernandez v. Mesa, 140 S.Ct. 735, 742 (2020)), and “if there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy[,] courts must refrain from creating

[it,]” Id. (quoting Ziglar, 137 S.Ct. at 1858); Ziglar, 137 S.Ct. at 1857 (stating that “expanding

the Bivens remedy is now a ‘disfavored’ judicial activity.” (quoting Iqbal, 556 U.S. at 675)).

For these reasons, where, like here, a plaintiff seeks a yet-to-be-established Bivens remedy,

the Court has instructed that “analysis of a proposed Bivens claim proceeds in two steps: A court

first asks whether the case presents a ‘new Bivens context’–i.e., is it ‘meaningfully different from

the three cases in which the Court has implied a damages action[.]’” Id. at 1797 (quoting Ziglar,

137 U.S. at 1855). A case might meaningfully differ, for example, due to “the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the official action; [or]

the extent of judicial guidance as to how an officer should respond . . . .” Ziglar, 137 S.Ct. at 1859-

60.

Second, if a claim does, indeed, arise in a new context, “a Bivens remedy is unavailable if

there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 142

S.Ct. at 1803 (quoting Ziglar, 137 U.S. at 1858). While “there may be many such factors, . . . two

are particularly weighty: the existence of an alternative remedial structure and separation-of-

powers principles.” Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018) (citing Ziglar, 137 S.Ct. at

1857-58). Notably, if an alternative remedial structure exists, that “may[,] by itself[,] ‘limit the

power of the Judiciary to infer a new Bivens cause of action.’” Id. (citing Ziglar, 137 S.Ct. at

1858). Other special factors discussed by the Court include, among others, “the potential cost to

the government of recognizing a private cause of action, both financially and administratively;

whether the judiciary is well suited to weigh those costs; the necessity to deter future violations; .

. . [and] whether a claim addresses individual conduct or a broader policy question.” Id. (Ziglar,

137 S.Ct. at 1856-63). Importantly, “[i]f there is even a single ‘reason to pause before applying

Bivens in a new context,’ a court may not recognize a Bivens remedy.” Egbert, 142 S.Ct. at 1803

(quoting Hernandez, 140 S.Ct. at 743).

Consequently, first, the Court must determine whether Plaintiff’s claims present new

Bivens contexts. They do. Specifically, Plaintiff brings claims under the First Amendment right

of access to the courts and to receive and disseminate information, as well the Fourteenth

Amendment right to loiter for innocent purposes. At the outset, the Court notes that Plaintiff does

not bring claims under the Constitutional Amendments upon which the Supreme Court has already

found Bivens remedies, i.e., the Fourth, Fifth, or Eighth Amendments. Plaintiff’s claims, which

are based on Plaintiff being denied access to the Clerk of Court’s Office during particular hours of

the day, also bear no factual resemblance to the three Bivens claims that the Court has previously

approved: “a claim against FBI agents for handcuffing a man in his own home without a warrant;

a claim against a Congressman for firing his female secretary; and a claim against prison officials

for failure to treat an inmate’s asthma.” Ziglar, 137 S.Ct. at 1860 (citing Bivens, 403 U.S. 388;

Davis, 442 U.S. 228; Carlson, 446 U.S. 14). Importantly, as to the First Amendment claims, the

Court notes that the “the Supreme Court has never implied a Bivens action under any clause of the

First Amendment.” Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017) (citing Reichle

v. Howards, 556 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First

Amendment claims.”)).6 Likewise, and unsurprisingly, the “Supreme Court has [also] never

extended Bivens to the Fourteenth Amendment[,]” Ramirez v. City of Trenton, No. 21-10283,

2022 WL 1284737, at *7 (D.N.J. April 29, 2022), because “[t]he Fourteenth Amendment only

applies to actions of the states and not to the federal government[,] Brown v. Philip Morris Inc.,

250 F.3d 789, 800 (3d Cir. 2001). See Berk v. Hollingsworth, No. 17-0091, 2020 WL 6867216, at

*5 (D.N.J. Nov. 23, 2020) (finding it inappropriate to extend a Bivens remedy to a Fourteenth

Amendment claim); Kent v. Tabafunda, No. 07-4973, 2008 WL 2510723, at *1, n.4 (D.N.J. June

19, 2008) (recognizing that although Plaintiff filed a Bivens-like complaint pursuant to the

Fourteenth Amendment, the Fourteenth Amendment is not applicable to the facts of the case

because defendants are federal, not state actors). For these reasons, I find that Plaintiff’s claims

present new Bivens contexts.

Proceeding to step two, I find that special factors counsel against finding a Bivens remedy

for Plaintiff’s asserted claims. First, Plaintiff clearly had alternative remedies available through

the basic court system processes, and this alone, is sufficient to not expand Bivens remedies. See

Bistrian, 912 F.3d at 90 (noting that if an alternative remedial structure exists, that “may[,] by

itself[,] limit the power of the Judiciary to infer a new Bivens cause of action.”); see also Egbert,

142 S.Ct. at 1803 (explaining that “[i]f there is even a single ‘reason to pause before applying

Bivens in a new context,’ a court may not recognize a Bivens remedy.” (quoting Hernandez, 140

S.Ct. at 743)). Plaintiff’s claims stem from being denied entry to the Clerk’s office on December

6 In addition, none of Plaintiff’s cited cases which supposedly confer these First or Fourteenth

Amendment rights involve Bivens claims.

19, 2018, while attempting to access unspecified case files from his separate East Hanover PD

Action. Fourth Am. Compl. ¶¶ 1-3. As Defendants correctly argue, Plaintiff had multiple

pragmatic remedies to address this supposed harm. Def. Br. at 12-13. Plaintiff could have, for

example, called or returned to the Clerk’s office on December 20 or 21, 2018. Id. at 13. If he was

seeking documents, Plaintiff could have requested that his adversary mail him the necessary

documents. Id. If Plaintiff went to the Clerk’s Office to respond to a motion or other order,

Plaintiff could have requested additional time from the Court or opposing counsel. Id.

Furthermore, the East Hanover PD Action was not dismissed until July 14, 2020, almost nineteen

months after the alleged incident, and not for any reasons related to Plaintiff not being able to

access his files on the date in question. Marinaccio v. East Hanover Police Department, No. 18-

15443 (D.N.J. July 14, 2022), ECF No. 61 (granting Defendants’ Motion for Summary Judgment).

Regardless of any alleged harm arising out of Plaintiff’s inability to access the Clerk’s office on

December 19, 2018, he appears to have had ample time to remedy it by other reasonable means.

In addition, the “potential cost to the government of recognizing” a cause of action based

on such self-remediable harms would significantly burden the court system, “both financially and

administratively[.]” Bistrian, 912 F.3d at 90. The number of potential lawsuits stemming from

the simple act of temporarily closing an office for lunch or a holiday party could be substantial,

and the “burden and demand of litigation might well prevent [the Clerk’s Office] . . . from devoting

the time and effort required for the proper discharge of [its] duties.” Ziglar, 137 S.Ct. at 1860.

These potential lawsuits would also cause the Judiciary, and in turn, the Federal government, to

incur substantial administrative and financial costs defending such suits. Considering this

potentially significant burden to the government, it would be preferable for Congress, rather than

the courts, to “‘weigh the costs and benefits of allowing [such a] damages action to proceed.’”

Egbert, 142 S.Ct. at 1805 (quoting Ziglar, 137 U.S. at 1858). Moreover, I agree with Defendants

that “[c]ourt personnel should not fear personal liability any time the courts shut down . . . or one

of the numerous pro se litigants have their filings rejected for an alternative reason.” Def. Br. at

13. Subjecting judiciary employees to monetary damage suits for temporarily closing an office

has the potential to significantly hamper these employees’ day-to-day discretionary activities.

For these reasons, the Court declines to extend Bivens remedies to Plaintiff’s First

Amendment constitutional claims, and therefore, these claims are dismissed.

B. Claims Against the United States

The United States is a Defendant for the following claims: (1) New Jersey Constitution;

(2) NJCRA; (3) NJLAD; (4) misrepresentation; (6) breach of duty; (7) intentional infliction of

emotional distress; (8) False Claims Act; and (9) breach of contract.7 I find that this Court lacks

subject matter jurisdiction to decide the first eight claims. First, the United States has not waived

7 Plaintiff asserts that the U.S. Attorney certification should be rejected because Defendant Walsh

was, in fact, acting outside the scope of his employment when he barred Plaintiff entry to the

Clerk’s Office. For this reason, Plaintiff contends that the United States was not properly

substituted as a defendant for these claims, and therefore, the Court should, instead, consider all

claims as against Defendant Walsh in his individual capacity. Pl. Opp. Br. at 41-42. I disagree.

The Third Circuit has determined that a court, without conducting discovery or a hearing, may

decide whether a defendant was acting within the scope of employment as a matter of law. Schrob

v. Catterson, 967 F.2d 929, 935-36 (3d Cir. 1992). Where a plaintiff “challenges the propriety of

the United States substitution as a Defendant in an FTCA case, the scope of employment

certification filed by the Government is prima facie evidence that [the federal employee’s] conduct

occurred within the scope of [his] employment.” Mendez Vallejo v. United States, No. 20-12664,

2021 WL 2155380, at *4 (D.N.J. May 27, 2021) (internal quotations omitted). As such, “[i]t is

Plaintiff’s burden to come forward with specific facts rebutting” the certification. Id. (citing

Schrob, 967 F.2d at 935-36). Here, Plaintiff has provided no facts whatsoever to rebut the

certification. Instead, Plaintiff merely disagrees with the certification’s conclusion that, based on

the allegations, Defendant Walsh was acting within the scope of his employment. Plaintiff states

that, “Defendants can’t deny that they left work and had stopped working when they kicked

Plaintiff out of Clerk’s Office . . . . This is a disputed material fact that requires discovery.” Pl.

Opp. Br. at 41. But this is not a disputed fact. Indeed, the U.S. Attorney determined that Defendant

Walsh was acting within the scope of his employment assuming such a fact to be true. Therefore,

Plaintiff has failed to raise any specific facts rebutting the certification.

sovereign immunity for claims under the New Jersey Constitution, NJCRA, or NJLAD. Second,

Plaintiff has failed to exhaust his administrative remedies, as required by the FTCA, before

bringing his tort claims for misrepresentation, breach of duty, and intentional infliction of

emotional distress. Finally, Plaintiff may not bring a False Claims Act claim because pro se

litigants may not pursue qui tam actions on behalf of the Government. As to the breach of contract,

Plaintiff has failed to state a claim that there was a valid contract between the parties.

i. Sovereign immunity bars Plaintiff’s claims under the New Jersey

Constitution, NJCRA, and NJLAD.

It is well-settled “that the United States of America may not be sued without its consent[.]”

United States v. Mitchell, 463 U.S. 206, 212 (1983); see F.D.I.C. v. Meyer, 510 U.S. 471, 475

(1994); United States v. Dalm, 494 U.S. 596, 608 (1990). The consent “must be ‘unequivocally

expressed’ in statutory text, and cannot simply be implied.” Adeleke v. United States, 355 F.3d

144, 150 (2d Cir. 2004) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)).

“Absent a waiver, sovereign immunity shields the Federal Government . . . .” F.D.I.C., 510 U.S.

at 475; see Mierzwa v. U.S., 282 Fed. App’x 973, 977 (3d Cir. 2008). Additionally, sovereign

immunity extends to federal employees acting in their official capacity. Webb, 250 Fed. App’x at

471. Importantly, “[s]overeign immunity is jurisdictional in nature,” and consequently, if the

United States has not waived sovereign immunity, the case must be dismissed for lack of subject

matter jurisdiction. Balice v. United States, No. 17-13601, 2018 WL 3727384, at *3-4 (D.N.J.

Aug. 6, 2018) (quoting F.D.I.C., 510 U.S. at 475).

Plaintiff does not advance, and the Court was unable to find, any Federal statutes which

unequivocally waive sovereign immunity for claims under the New Jersey Constitution, NJCRA,

or NJLAD. See Meehan v. Taylor, No. 12-4079, 2013 WL 4517943, at *2 n.1 (D.N.J. Aug. 26,

2013) (“Plaintiff’s claims arising directly under the New Jersey and United States constitutions

are deficient because Congress has not created a waiver of sovereign immunity for such causes of

action.”); Andrews v. United States, No. 12-2516, 2012 WL 5249977, at *2 (D.N.J. Oct. 24, 2012)

(noting that the United States “cannot be liable for the purported violation of rights established

under the New Jersey Constitution, as the[y] are similarly immune from such claims.”); Abulkhair

v. FBI, No. 14-5677, 2018 WL 772086, at *2 (D.N.J. Feb. 6, 2018) (dismissing NJLAD claim

against the United States). Accordingly, these claims are dismissed for lack of subject matter

jurisdiction.

ii. Plaintiff failed to exhaust his administrative remedies under the FTCA.

Regarding Plaintiff’s tort claims, Defendant brings a factual attack, arguing that Plaintiff

failed to exhaust his administrative remedies as required by the FTCA. See Gould Elecs. Inc., 220

F.3d at 176 (stating that, on a factual attack, courts may “consider evidence outside the pleadings,”

such as affidavits, since the motion contests the underlying basis for jurisdiction). Plaintiff

disagrees, and asserts that he, in fact, did exhaust his administrative remedies by mailing a “notice

of claim” to Defendants. I find that Plaintiff has failed to exhaust his administrative remedies

under the FTCA, and therefore, Plaintiff’s tort claims for misrepresentation, breach of duty, and

intentional infliction of emotional distress must be dismissed.

Tort claims against the United States of America are governed by the FTCA. See 28 U.S.C.

§§ 1346(b), 2401, 2671, et seq. “In 1946, Congress passed the FTCA, which waived the sovereign

immunity of the United States for certain torts committed by federal employees.” F.D.I.C., 510

U.S. at 475-76 (citing 28 U.S.C. § 1346(b)). Thus, a claimant may bring an action for money

damages against the United States, provided that the claimant has first exhausted administrative

remedies by presenting his claim to the appropriate federal agency. See 28 U.S.C. § 2675(a);

McNeil v. United States, 508 U.S. 106, 113 (1993). A claim has been “presented” when “an

executed Standard Form 95 . . . [is] accompanied by a claim for money damages in a sum certain

for injury to or loss of property [or] personal injury . . . .” 28 C.F.R. § 14.2(a). Taken together,

this creates a firm obligation on the plaintiff to place a value on the claim and present that value to

the agency. See Tucker v. United States Postal Service, 676 F.2d 954, 958-59 (3d Cir. 1982).

Failure to present a FTCA claim with a sum certain is dispositive, and deprives this Court of subject

matter jurisdiction over the tort claim. White–Squire v. U.S. Postal Service, 592 F.3d 453, 458 (3d

Cir. 2010).

Here, Plaintiff appears to mistake his notification of this suit to Defendants as the proper

notification under the FTCA and 28 C.F.R. § 14.2(a). In Plaintiff’s certification, he claims that on

February 13, 2019, he “served clerks of district court notice of claim ent[titled] notice of claim

with a brief description of the defendants’ actions of ejecting me, securing the Clerk’s Office while

the Court was open and playing hooky on 12/19/18.” ECF No. 30-1, Pl. Cert. ¶ 10. Plaintiff also

includes a photo of a notification from USPS that the notice of claim was delivered to “50 Walnut,”

which is part of the Newark Courthouse address. Id. ¶ 11. Regardless, sending a notice of a lawsuit

to Defendants does not qualify as proper presentment of a claim for money damages to a Federal

agency under the FTCA. See 28 C.F.R. § 14.2(a). Furthermore, the declaration of Tiffany Lewis,

a paralegal specialist at the Administrative Office of the United States Courts (“AO”), states that

the AO, which acts as the Federal agency head for the purpose of considering FTCA claims, has

received no claim or submission from Plaintiff. ECF No. 19-2, Lewis Decl. at 1. As such, Plaintiff

has not exhausted his administrative remedies and his tort claims are dismissed.

iii. Plaintiff cannot bring a claim under the False Claims Act.

Next, Plaintiff brings a False Claims Act claim, asserting that Defendants Walsh and Court

employees were “fraudulently collecting money from the Gov[ernment] for services not provided

during the time they spent ‘playing hooky’ on 12/19/18.” Pl. Opp. Br. at 18. Furthermore, Plaintiff

argues that “[i]t is self evident that defendants not only received federal funds and failed to even

so much as be present to do the tasks for which they were hired and being paid, but also that

payment of the federal funds was conditioned on the agreement by defendants to show up and

perform those tasks.” Id. Plaintiff cannot pursue this claim.

“The False Claims Act enables private parties, known as relators, to bring enforcement

actions on behalf of the United States to recover funds which were fraudulently obtained, and to

share in any resulting damages award.” Downey v. United States, 816 Fed. App’x 625, 627 (3d

Cir. 2020) (citing 28 U.S.C. § 3729, et seq.). A suit filed by a relator is deemed to be brought “for

the person and for the United States Government.” 31 U.S.C. § 3730(b)(1). However, “while the

False Claims Act permits relators to control the False Claims Act litigation, the claim itself belongs

to the United States.” Downey, 816 Fed. App’x at 627 (quoting U.S. ex rel. Mergent Servs. v.

Flaherty, 540 F.3d 89, 93 (2d Cir. 2008)). In addition, the Third Circuit has held “that an individual

proceeding pro se may not represent third parties in federal court.” Ajjahnon v. St. Joseph’s

University Medical Center, 840 Fed. App’x 667, 668 (3d Cir. 2020). “Therefore, a pro se litigant

may not pursue a qui tam action on behalf of the Government.” Id.; Downey, 816 Fed. App’x at

627 (same).

Plaintiff brought the False Claims Act claim because, in his view, Defendants were

defrauding the Government by improperly collecting a government salary “for services not

provided during the time they spent playing hooky.” Pl. Opp. Br. at 18. But, because Plaintiff is

pro se and he seeks to bring this claim on behalf of the Government, as opposed to any personal

interest, he may not pursue such a claim. Downey, 816 Fed. App’x at 627 (“Downey did not allege

that he had a personal interest in the qui tam portion of this action; rather, he emphasized that his

goal is to help the federal government eliminate the budget deficit. Accordingly, the District Court

properly held that Downey, a pro se relator, could not pursue the qui tam action.”); Ajjahnon, 840

Fed. App’x at 668-69 (“Ajjahnon brought the action to recover on behalf of the government for

the defendants’ allegedly fraudulent billing practices. As such, the District Court did not err in

concluding that Ajjahnon may not maintain this qui tam action in her pro se capacity as a relator

on behalf of the United States.”).

iii. Plaintiff failed to state a claim for breach of contract.

Here, Defendants argue, among other things, that Plaintiff failed to state a claim for breach

of contract because, put simply, there is no contract between Plaintiff and Defendants. I agree.

As an initial matter, any supposed contract would not be between private parties, but rather,

would be a contract between Plaintiff and the United States. “And when the United States is a

party to a contract, federal common law governs that contract.” E.O.H.C. v. Sec’y of United States

Dep’t of Homeland Sec., 950 F.3d 177, 192 (3d Cir. 2020). Under federal common law, a breach

of contract claim requires: “(1) the existence of a valid contract between the parties; (2) an

obligation or duty arising from that contract; (3) a breach of that duty; and (4) damages caused by

that breach.” United Launch Servs., LLC v. United States, 139 Fed. Cl. 664, 681 (2018) (citing

San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)).

Here, Plaintiff’s Fourth Amended Complaint only makes one statement regarding a

contract. Under the section “Plaintiff charges,” it states, “Violation and interfering with plaintiff’s

statutory rights protecting him from defendants’ bre[a]ch of contract and bre[a]ch of duty.” Fourth

Am. Compl. ¶ 25. This lone statement clearly is conclusory. Indeed, Plaintiff makes no other

statements about any potential contract in his opposition brief, nor can any other part of Plaintiff’s

submissions be construed as implying the existence of a contract, let alone that such a contract was

breached. As such, Plaintiff has failed to plead any element of a breach of contract claim, and

therefore, Plaintiff has failed to state a claim upon which relief can be granted.

C. Plaintiff’s Motion for Leave to Amend is Denied as Futile

In light of the foregoing analysis, granting leave to amend Plaintiff’s Third Amended

Complaint would be futile. See Winer Family Trust, 503 F.3d at 330-331 (“[A] District Court may

deny leave to amend on the grounds that amendment would cause undue delay or prejudice, or that

amendment would be futile.”). “Futility ‘means that the complaint, as amended would fail to state

a claim upon which relief could be granted.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231

(3d Cir. 2011) (quoting Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d

159, 175 (3d Cir. 2010)). The Court has considered the claims and found that none are viable. As

such, I deny Plaintiff’s motion to amend as futile. Since Plaintiff has already amended his

complaint multiple times, I also find that providing Plaintiff any further opportunities to amend

would be futile.

IV. CONCLUSION

For the reasons set forth above, Defendants Motion to Dismiss is GRANTED.8 Plaintiff’s

motion to amend is DENIED. Plaintiff’s Complaint is DISMISSED. An appropriate order shall

follow.

8 Plaintiff also claims that Defendants violated Fed. R. Civ. P. 77, which governs the operations of

Clerk’s offices, by failing to keep the Clerk’s office open. Plaintiff cannot bring a claim under the

Federal Rules of Civil Procedure. The Rules Enabling Act states that the Federal Rules of Civil

Procedure “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b).

Accordingly, “[a]s a matter of elemental law, the Federal Rules of Civil Procedure do not create

substantive rights which do not otherwise exist.” Weiner v. Bank of King of Prussia, 358 F. Supp.

684, 694 (E.D. Pa. 1973).

Date: July 20, 2022 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge