MCLEOD v. FITZPATRICK MCGOUGH

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEVE MCLEOD,

Plaintiff,

Civil Action No. 20-1362 (MAS) (TJB)

FIFTH JUDICIAL DISTRICT OF

PENNSYLVANIA, ef al., MEMORANDUM OPINION

Defendants.

SHIPP, District Judge

This matter comes before the Court on pro se Plaintiff Steve McLeod’s (“McLeod”) Third

Amended Complaint. ““TAC,” ECF No. 18.) Because Plaintiff was granted in forma pauperis

status (ECF No. 17), the Court screens his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and

sua sponte dismisses any claim that is frivolous, malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief from a defendant who is immune from such relief.

I. BACKGROUND

This suit arises out of McLeod’s disagreement with a series of state custody and child

support proceedings. (See generally TAC.) McLeod identifies fifteen defendants in his TAC, each

of whom allegedly played a part in the proffered miscarriage of justice and subsequent harassment

of McLeod. (/d.) It should be noted at the outset that the Complaint is confusing, as it jumps

between timelines, states, and actors.! But, at a minimum, McLeod alleges his constitutional rights

were violated and that he was harassed and defamed. (/d. at 1.) Notwithstanding the fact that the

specifics of his story are vague and the connections between actors and the claims are speculative,

the Court takes up the Complaint sua sponte.

I. LEGAL STANDARD

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28

ULS.C. § 1915(e€)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6).” Conner v. Reed, No, 21-14193, 2022 WL 138100, at *1 (D.N.J. Jan.

4, 2022) (quoting Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)). In deciding a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),” a district court is required to

accept as true all factual allegations in the complaint and draw all reasonable inferences from those

allegations in the light most favorable to the plaintiff but need not accept as true legal conclusions

couched as factual allegations. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008);

Papasan v. Allain, 478 U.S. 265, 286 (1986). A complaint need not contain “detailed factual

allegations” to survive a motion to dismiss, but must contain “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

complaint “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do[,]’” and a complaint will not “suffice” if it provides only “‘naked assertion[s]’

' The Court previously questioned whether venue was proper in this case. (Aug. 10, 2020 Order,

ECF No. 12.) Even now venue remains a challenging question. See Gattas v. City of Jersey City,

No. 07-4242, 2009 WL 5216973, at *3 (D.N.J. Dec. 29, 2009). That said, the Court notes that

McLeod is pro se and chose to file in this District. Moreover, at least some of the events took place

in New Jersey. As such, the Court finds venue is proper for the purposes of this sua sponte

screening.

* Hereafter, references to “Rule” or “Rules” refer to the Federal Rules of Civil Procedure.

devoid of ‘further factual enhancement.” Jd. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 557 (2007)). “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.’” Jd. (quoting

Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Jd. (quoting Twombly, 550 U.S. at 556). A complaint that provides facts

“merely consistent with” the defendant’s liability “stops short of the line between possibility and

plausibility” and will not survive review under Rule 12(b)(6). /d. (quoting Twombly, 550 U.S. at

557).

IW. DISCUSSION

In determining the sufficiency of a pro se complaint, the Court must construe the pleadings

liberally and in the plaintiffs favor. See, e.g., Higgs y. Att’y Gen. of the U.S., 655 F.3d 333, 339

(3d Cir. 2011); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Capogrosso v. The Sup. Ct. of N.J., 588

F.3d 180, 184 (3d Cir. 2009) (“[W]e remain mindful of our obligation to construe

a pro se litigant’s pleadings liberally.”). That said, while pro se pleadings are to be broadly

construed, pro se litigants must still “allege sufficient facts in their complaints to support a

claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

The Court therefore looks to the causes of action McLeod pled as well as the factual

narrative he paints to assign any additional causes of action that McLeod presumably sought to

plead. While true that a complaint’s “failure to differentiate between defendants can warrant

dismissal in and of itself,” the Court attempts to extract from McLeod’s six-page narrative any and

all potential causes of action he may touch upon in his Complaint. Turner v. N..J. State Police, No.

08-5163, 2017 WL 1190917, at *10 n.22 (D.N.J. Mar. 29, 2017). Particularly so because this is

McLeod’s third attempt to plead some cause of action. And in construing the Complaint liberally,

from what the Court can glean from McLeod’s allegations, he raises state law claims for

harassment (N.J. Stat. Ann. § 2C:33-4), common law tort claims for defamation, and federal claims

under 18 U.S.C. § 242 and 42 U.S.C. § 1983. The Court starts with McLeod’s improper group

pleadings as to some named defendants and then marches through the Complaint’s factual

allegations, grouping together similar claims and events.

A. Improper Group Pleading

First, several Defendants are named but not mentioned throughout any of the Complaint’s

factual allegations. (See generally TAC.) As such, the Complaint does not “give the defendant fair

notice of what the ... claim is and the grounds upon which it rests[.]” Twombly, 550 U.S. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Group pleadings are insufficient to sustain a

claim as a matter of law. Pushkin v. Nussbaum, No. 12-324, 2017 WL 1591863, at *7 (D.N.J. Apr.

28, 2017) (“[G]roup pleading is impermissible because it fails to put each [d]efendant on notice of

their specific actions which render them liable to [p|laintiff.”). More specifically, courts in this

district consistently hold that group pleading does not satisfy the plausibility requirement of Rule

8. See, e.g., Dante v. Schwartz, No. 20-01047, 2022 WL 1104996, at *3 (D.N.J. Apr. 13, 2022)

(“Group pleading fails to meet the plausibility requirement”); Frazier v. Kuhn, No. 22-2781, 2022

WL 2235884, at *7 (D.N.J. June 22, 2022) (pleading that all defendants committed a single

violation does “not satisfy the plausibility standard”). Pleadings that fail to identify each

defendant’s role for the alleged wrong are insufficient. Pushkin, 2017 WL 1591863, at *7. In any

event, the Court considers the factual narrative in the Complaint.

B. Allegations of Unfairness and Harassment During Family Law Proceedings

First up, the Court examines the allegations levied against the Fifth Judicial District of

Pennsylvania, certain identified judges, and a judicial law clerk for one of those judges. (TAC 1-5.)

Regardless of McLeod’s opinion of the judicial system and how he thinks the involved judges

handled his case, it is an established principle of law that judges are generally “immune from a

suit for money damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991). Indeed, judicial immunity

encompasses a broad scope of actions by judges, including actions taken in error, “done

maliciously, or... in excess of [their] authority[.]” Stawnp v. Sparkman, 435 U.S. 349, 356 (1978).

That said, there are two narrow exceptions to judicial immunity. Mireles, 502 U.S. at 11. “First, a

judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge’s

judicial capacity.” Jd. “Second, a judge is not immune for actions, though judicial in nature, taken

in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.

Here, it is obvious no exception to judicial immunity applies. McLeod pleads the following:

(1) his rights were generally “violated” and that he is a Black man (TAC 1); (2) a judge informed

him that the judge may hold him in contempt (id.); (3) McLeod lost custody of his child during a

judicial proceeding in March 2019 and subsequently lost visitation rights (id. at 1-2); (4) one of

the judges that McLeod appeared before called the police to report that McLeod was harassing the

judge and the judge’s daughter (id. at 1); (5) some of the judges that McLeod appeared before were

friends with other judges on social media (id. at 2); (6) the judge that McLeod appeared before

reversed his ruling supposedly after being informed that Jamaica has laws against gay individuals

(id. at 3);? (7) McLeod lost several motions in family court (id. at 4); (8) judicial officers refused

to “provide evidence” to McLeod and misstated the record, therefore “abus[ing] [their] power”

(id. at 3-4); (9) a judicial law clerk imposed a filing fee on McLeod for filing a motion (id. at 4);

(10) McLeod’s child support is too high (7d. at 5); and (11) general grievances that the judicial

system prays on minorities (id).

> McLeod explains that he was born in Jamaica (TAC 1) and therefore the judge, on hearing about

Jamaica’s discriminatory laws, took out his frustration on McLeod (TAC 3).

On these facts, all judicial actors and court staff are entitled to absolute judicial immunity,

The Court groups these clumps of allegations into several buckets. First, many of McLeod’s

complaints sound in perceived unfairness during his family court proceeding and perceived bias

by judicial officers. But, as noted above, to overcome the strong presumption of judicial immunity,

McLeod must plead facts that suggest the judicial officers acted outside the scope of their duties

or exceeded their jurisdiction. Mireles, 502 U.S. at 11-12. McLeod does neither of those things.

To be sure, he complains in this federal suit about how the state court handled evidence, motions,

and statements made in court. Decisions on those matters clearly fall within a judicial capacity. As

such, absolute immunity applies.* Accordingly, McLeod’s claims regarding judicial actions taken

by the judicial defendants are barred under the doctrine of judicial immunity and, therefore, are

dismissed. See Clauso v. Solomon, No. 14-5280, 2017 WL 1528712, at *6 (D.N.J. Apr. 27,

2017) (dismissing claims against judges with prejudice because the judges were entitled to

absolute judicial immunity).

The next bucket contains factual allegations that suggest judicial officers and their agents

harassed McLeod during the pendency of his family law matters.° The Complaint details two

separate events that fall into this grouping—a call by a judge to the police over a believed threat

* Although McLeod fails to plead any facts (versus conclusions) that support his theory of judicial

error, judges are immune from liability “even if [their] exercise of authority is flawed by the

commission of grave procedural errors.” Stump, 435 U.S. at 359, It is settled law that a litigant’s

mere disagreement with a judge’s decisions or actions “does not justify depriving that judge of

[their] immunity.” /d. at 363.

McLeod mentions in passing that his former pro bono counsel for his family court proceedings

threatened to “lock [him] up” during their initial meeting. (TAC 5.) This falls short of pleading

any claim against that pro bono counsel, as this grievance does not provide the words spoken, the

date or location of the alleged interaction, or any facts to substantiate a claim for harassment or

anything else redressable by legal proceedings. See Morse v. Lower Merion Sch. Dist., 132 F.3d

902, 906 (3d Cir. 1997) (finding that “bald assertions” or “legal conclusions” need not be credited

in a complaint).

to that judge’s family and the imposition of court filing fees by judicial staff. (See TAC 2-4.)

Starting with the former, the Court cannot identify a cause of action that arises from an individual

calling the police after feeling harassed, without more. See Stewart v. Victoria’s Secret Stores,

LLC, 851 F. Supp. 2d 442, 446 (E.D.N.Y. 2012) (“Merely providing information to law

enforcement, even if that information is false or mistaken, does not render the supplier of

information a state actor.”); Bloom v. Town of New Windsor Police Dep't, 234 F.3d 1261 (2d Cir.

2000) (finding that a private individual’s call to police to report a potential crime was not

actionable under § 1983). Next, court employees imposing a filing fee is simply not harassment.

(TAC 2-4,) Not only do “[c]ourt clerks have absolute quasi-judicial immunity from damages for

civil rights violations when they perform tasks that are an integral part of the judicial process,” but

enforcing a filing fee is a far cry from harassment. Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828

F.2d 1385, 1390 (9th Cir. 1987); Akins v. Deptford Twp., 813 F. Supp. 1098, 1102-03 (D.N.J.

1993), aff'd, 995 F.2d 215 (3d Cir. 1993).

As such, any action against the judicial employees on these facts fail to state a claim or are

barred by absolute judicial immunity.®

C. Claims that Police Officers Harassed McLeod

McLeod alleges that members of the Allegheny County Sherriffs Office and Brick

Township Police Department harassed him. (TAC 1.) These claims also fail to state a claim under

Rule 8(a). Law enforcement acting on a tip or allegation that a crime was committed does not

substantiate harassment claims against the police without more. See United States v. Perkins, 363

° McLeod also alleges in cursory fashion that the law clerk “harassed” him in an elevator on one

occasion and mentions (but does not describe) a “note” McLeod received from this law clerk.

(TAC 3.) Such generalized, undescriptive allegations fall woefully short of pleading harassment.

See N.J. Stat. Ann. § 2C:33-4.

F.3d 317, 326 (4th Cir. 2004) (holding that where an officer is able to verify the reliability of a tip,

the dangers of harassment are greatly minimized); Ballou v. Com. of Mass., 403 F.2d 982, 986 (1st

Cir. 1968) (holding that in acting on tips “there is always the necessity of relying to some extent

on the good faith of law enforcement officials”). As such, there is no basis for a claim of

harassment on these facts.

Second, McLeod alleges that in January 2019, police disrespected him when they arrived

at his house to question him and called him an “asshole” after McLeod refused to give his name.

(TAC 2.) McLeod also alleges racial discrimination because he claims to have overheard a police

officer mutter that it was “shocking” that McLeod had no active warrants. As an initial note, law

enforcement’s questioning of McLeod after receiving a complaint of harassment is not a

constitutional violation. See Levys v. Shamlin, 808 F. App’x 97, 102-04 (3d Cir. 2020) (finding

that police officers responding to 911 call was not a constitutional violation). What’s more, the

alleged name calling is not a constitutional violation either, or the basis for any other valid claim.

Robison v. Hovis, No. 19-2292, 2020 WL 1158125, at *5 n.5 (E.D. Mo. Mar. 10, 2020) (“Name

calling is not a constitutional violation for purposes of an action pursuant to 42 U.S.C. § 1983.”).

Thus, these factual allegations fail to support any cause of action.

Finally, the Complaint presumably brings constitutional claims against the Brick Township

Police Department for actions taken by its officers. (TAC 1-2.) But a municipal police department

is not a proper defendant in a case under § 1983. Geissler v. City of Atlantic City, 198 F. Supp. 3d

389, 395 (D.N.J. 2016). Indeed, Courts in the Third Circuit “treat the municipality and its police

department as a single entity for purposes of section 1983 liability.” Bonenberger v. Plymouth

Twp., 132 F.3d 20, 25 n.4 (3d Cir, 1997). As such, the Complaint is construed as bringing claims

against the Township of Brick, New Jersey, rather than the police department itself.

It is well-established that “a local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Serv. of City of N.Y., 436 U.S.

658, 694 (1978); MecTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009) (recognizing that

there is a “two-path track” to municipal liability under § 1983, either through municipal policy or

custom); Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (“Policy is made when a

‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the action’

issues an official proclamation, policy, or edict.”) (citation omitted). Rather, “it is when execution

of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts the injury that the government as an

entity is responsible under § 1983.” Monell, 436 U.S. at 694. “To satisfy the pleading standard,

[plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was”

in the complaint. McTernan, 564 F.3d at 658 (upholding district court’s dismissal of claims

because simply paraphrasing § 1983 was not sufficient to allege a Monel/ claim).

McLeod’s Complaint fails to meet this standard. McLeod claims that the Police

Department improperly spoke with his daughter, that they were “shocked” that he did not have

any outstanding warrants, and that a police officer referred to him in a derogatory manner. (TAC

1-2.) All of these happened in one interaction. (/d.) Thus, there is no pleading that identifies the

municipality’s policy or custom. As such, the Complaint insufficiently pleads liability for

constitutional violations against the Township, ’

addition, under the New Jersey Tort Claims Act, a public entity is protected from liability for

the intentional “acts or omissions of a public employee constituting a crime, actual fraud, actual

malice, or willful misconduct.” N.J. Stat. Ann. § 59:2-10; Gurvey v. Township of Montclair New

Jersey, No. 19-17525, 2022 WL 970303, at *16 (D.N.J. Mar. 31, 2022). Therefore, the Township

cannot be liable for alleged defamation—an intentional tort—or harassment, which requires willful

misconduct. See D & D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, No. 03-1026, 2007 WL

4554208, at *25-26 (D.N.J. Dec. 21, 2007).

D. Claims Against Family Services Personnel and Agencies

Finally, McLeod seemingly brings common law defamation claims (and perhaps

harassment claims) against Margaret Prescott, her employer the Women’s Center and Shelter of

Greater Pittsburgh, Chester Beattie, Donald Jerich, and Carolyn Jones. McLeod essentially claims

that these individuals and entities litigated against him in his child custody case, filed allegedly

false complaints, and misstated the evidence in court proceedings. (TAC 2-6.) These claims fail

for two reasons. First, they fail as a matter of law because the statements contested in the Complaint

are based on legal proceedings and are therefore covered by absolute immunity. Rickenbach v.

Wells Fargo Bank, N.A., 635 F. Supp. 2d 389, 400 (D.N.J. 2009). “Absolute immunity exists in

respect of statements, even those defamatory and malicious, made in the course of proceedings

before a court of justice, and having some relation thereto[.]” Hawkins v. Harris, 661 A.2d 284,

288 (N.J. 1995) (quoting Fenning v. S.G. Holding Corp., 135 A.2d 346, 350 (N.J. Super. Ct. App.

Div. 1957)). The absolute privilege applies to “any communication (1) made in judicial or quasi-

judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the

objects of the litigation; and (4) that have some connection or logical relation to the action.” /d. at

289. It is the understanding of the Court that McLeod’s allegations of defamation concern false

statements and communications made during a judicial proceeding by litigants and attorneys to

achieve their logical aims. As such, the allegations against these lawyers and litigants are barred

by absolute immunity. Moreover, any objections to the decisions, processes, methods, or rulings

of the family court had to be raised during that litigation or must be appealed to the relevant court

of appeals.

Second, as noted above, “New Jersey courts ‘have long recognized the existence of a

qualified privilege that confers immunity upon a public official for defamation uttered in relation

to matters committed by law to [his or her] control or supervision . . . [t]hat immunity is lost only

10

if ‘the defamation is made with actual malice’... .” Gurvey, 2022 WL 970303, at *15 (citations

omitted). The Complaint pleads no facts that allow the Court to infer that the state defendants

acted with actual malice. (See TAC.) The New Jersey Department of Children and Family Services

therefore falls under this umbrella of protection based on McLeod’s Complaint.

IV. CONCLUSION

The Court dismisses the Third Amended Complaint. Because McLeod had three bites at

the apple to adequately plead a claim, the Court dismisses his third attempt with prejudice. It will

issue an order consistent with this Memorandum Opinion.

MICHAEL A. att

UNITED STATES DISTRICT JUDGE

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