Opinion

RAMIREZ v. HARPER

Court
District Court, D. New Jersey
Filed
Jun 26, 2023
Cited by
0 cases
Authority
More cited than 25.6%

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RIGOBERTO RAMIREZ,

Case No. 22–cv–04986–EP–ESK

Plaintiff,

v.

OPINION AND ORDER

JALEN HARPER, et al.,

Defendants.

KIEL, U.S.M.J.

THIS MATTER having come before the Court on pro se plaintiff Rigoberto

Ramirez’s motion “to remove Attorney General as counsel,” wherein he seeks to

disqualify the New Jersey Office of the Attorney General (NJOAG) from

representing defendants Jalen Harper and Nathaniel Lhowe in this case (Motion)

(ECF No. 19); and defendants having filed opposition to the Motion (ECF No. 22);

and Ramirez not having filed a reply; and the Court finding:

1. Ramirez is “a convicted sex offender subject to [parole supervision for

life] and conditions appropriate to protect the public and foster rehabilitation.”

(ECF No. 1 p. 5.) See State of New Jersey v. Ramirez, No. A-0115-18T4, 2019 WL

5783476, at *1 (N.J. App. Div. Nov. 6, 2019) (detailing Ramirez’s charges, plea of

guilty, and sentencing in New Jersey state court in 2014). Defendants confirm

that Ramirez “is a convicted sex offender serving a term of Parole Supervision for

Life under Megan’s Law, N.J.S.A. 2C:43-6.4.” (ECF No. 22 p. 1.)

2. The New Jersey State Parole Board (Parole Board) employs Harper as

a parole officer and employs Lhowe as a parole supervisor. (ECF No. 5 p. 2; ECF

No. 15 p. 2 ¶ 4.)

3. Ramirez brought this federal case in August of 2022 while still

incarcerated in state prison. (ECF No. 1.) In December of 2022, pursuant to

the requirements of 28 U.S.C. § 1915(e)(2)(B), District Judge Evelyn Padin

screened Ramirez’s complaint and permitted the claim alleging a violation of his

rights under the First Amendment of the United States Constitution to proceed.

(ECF No. 5.) Judge Padin construed that claim to allege the following:

[Ramirez] requested permission for “limited internet access

for scholastic attainment” and “job searches” from … Harper

and … Lhowe. They denied his requests because [Ramirez]

has a “no internet” supervision condition. [Ramirez]

alleges the denials violate his First Amendment speech and

association rights[.]

(Id. pp. 1, 2 (internal citations omitted).) In April of 2023, the NJOAG filed an

answer to Ramirez’s First Amendment claim on behalf of both defendants. (ECF

No. 15.)

4. Ramirez filed the Motion on May 19, 2023. (ECF No. 19.) In support

of the Motion, Ramirez initially asserts:

The [NJOAG] previously represented the … Parole Board in

the appellate case in which [he] prevailed…. Specifically,

[Ramirez] won in the appellate court on an argument that

the [P]arole [B]oard needs to comport with federal, state,

and recent case law in regards to his internet and social

media conditions.

(Id. pp. 1, 2; see ECF No. 19-1 p. 2 (Ramirez discussing same).) Ramirez did not

raise any assertions concerning this state court appeal in the complaint. (See

generally ECF No. 1.)

5. Defendants filed their opposition on June 1, 2023. (ECF No. 22.)

Defendants acknowledge that “the NJOAG represented the Parole Board in a

State court appeal relating to the revocation of [Ramirez’s parole supervision for

life] involving violation of his conditions restricting computer access,” but they

not do not clarify whether Ramirez prevailed on that appeal. (Id. p. 6.) In

addition, the parties did not: (a) file on this Court’s docket a copy of the opinion

from the appeal; (b) provide a case citation for the appeal; or (c) advise whether

the appeal was decided before or after Ramirez’s complaint was filed in this

Court.1

6. Ramirez then raises two arguments in support of the Motion. First,

Ramirez argues that the NJOAG “represents state agencies and officials, not

individuals in their personal·capacity,” and that defendants’ “actions in this case

fall outside the scope of their official duties and are not entitled to representation

by the [NJOAG].” (ECF No. 19-1 p. 1; ECF No. 19 p. 2; see ECF No. 19-1 p. 3

1 If that appellate decision is designated as being excluded from public access, then

the parties could have filed under seal in this Court: (1) a copy of that decision; or (2) a

letter providing a case citation for the appellate decision if available. See L.Civ.R. 5.3(c).

(arguing same).) However, Ramirez concedes that defendants “were officially on

duty as parole officers at the time of the events in question.” (ECF No. 19-1 p. 5.)

7. Second, Ramirez argues that in view of the NJOAG’s “previous[ ]

represent[ation] [of] the Parole Board in an appellate case involving the same

issues as in this case,” the NJOAG’s representation of defendants “constitutes a

clear conflict of interest that violates the [NJOAG’s] duty of loyalty to the State

of New Jersey.” (Id. p. 1; ECF No. 19 p. 1.) Ramirez argues further that the

NJOAG’s representation of defendants “could lead to a potential conflict of

interest between … [d]efendants and the … Parole Board, as both parties are

represented by the same counsel,” which “could result in the [NJOAG’s] dual

loyalty to … [d]efendants and the [Parole] Board, leading to a conflict of interest

that would undermine [his] right to a fair and impartial judicial process.” (ECF

No. 19-1 p. 3.)

8. In opposition, defendants argue that the Motion “should be denied

because such motions are disfavored by the courts, and because [Ramirez] does

not identify any proper reason to disqualify the NJOAG as counsel.” (ECF No.

22 p. 3.) Defendants also argue that the NJOAG’s representation of defendants

“is consistent with their representation of the Parole Board: in each case, [the]

NJOAG is defending the actions of the [Parole] Board and its employees.” (Id.

p. 6.)

9. Pursuant to N.J.S.A. 59:10A-1, the NJOAG:

shall, upon a request of an employee or former employee of

the State, provide for the defense of any action brought

against such State employee or former State employee on

account of an act or omission in the scope of his employment.

See Prado v. State of New Jersey, 186 N.J. 413, 425 (2006) (stating the same).

10. However, the NJOAG need not provide legal representation to a state

employee defendant if: (a) the defendant’s “act or omission was not within the

scope of employment”; (b) the defendant’s “act or the failure to act was because of

actual fraud, willful misconduct or actual malice”; or (c) providing a “defense of

the action or proceeding … would create a conflict of interest between the State

and the employee or former employee.” N.J.S.A. 59:10A-2. Nonetheless, “the

NJOAG’s decision to defend a State employee or to apply an exception [under

N.J.S.A. 59:10A-2] is a discretionary decision to be made by the NJOAG and the

NJOAG alone.” Shaikh v. Germadnig, No. 22-02053, 2022 WL 16716116, at *4

(D.N.J. Nov. 4, 2022) (emphasis added). As a result, when the NJOAG

“exercise[s] its discretion to provide counsel to [a state employee defendant], this

Court is in no position to question that decision.” Aruanno v. Booker, No. 08-

00305, 2009 WL 1173438, at *2 (D.N.J. Apr. 29, 2009), aff’d, 384 F.App’x 69, 71

(3d Cir. 2010) (affirming “[f]or the reasons stated by the District Court”).

11. Defendants, who are Parole Board employees, were acting within the

scope of their employment when they were involved in the denial of Ramirez’s

request to alter his parole conditions. See N.J.A.C. 10A:71-6.12(k),(n)

(authorizing Parole Board employees to impose special parole conditions).

Indeed, Ramirez has acknowledged as much. (See ECF No. 19-1 p. 5 (Ramirez

stating in his brief in support of the Motion that defendants “were officially on

duty as parole officers at the time of the events in question”).) Furthermore,

Ramirez does not argue anywhere in his papers that defendants’ actions in

relation to the denial of his request for internet access were fraudulent, indicative

of willful misconduct, or malicious. (See generally ECF Nos. 1, 19, 19-1.)

Therefore, when viewing the first two elements of N.J.S.A. 59:10A-2, I find that

Ramirez has not demonstrated that the NJOAG acted inappropriately in electing

to represent defendants in this case.

12. I find that Ramirez’s argument as to the third element of N.J.S.A.

59:10A-2, i.e., that the NJOAG’s duty to the Parole Board on the earlier appeal

“is directly adverse to [d]efendants’ interests in this case” and thereby creates a

conflict of interest, is also without merit. (ECF No. 19 p. 4.) A plaintiff seeking

to disqualify the NJOAG from representing a state employee defendant “must

carry a heavy burden and must meet a high standard of proof before [the NJOAG]

is disqualified.” Marchisotto v. Malik, No. 20-20426, 2022 WL 2341631, at *1

n.2 (D.N.J. June 29, 2022) (internal quotation marks and citations omitted).

Motions to disqualify the NJOAG from representing a state employee defendant

are “generally disfavor[ed],” and they are “grant[ed] … only when absolutely

necessary.” Foat Leith v. Weitz, No. 15-07227, 2018 WL 2357757, at *10 (D.N.J.

May 24, 2018) (internal quotation marks and citations omitted) (denying the

plaintiff’s motion to disqualify the NJOAG from representing a state employee

defendant); see Shaikh, 2022 WL 16716116, at *3 (holding motions to disqualify

the NJOAG “are typically disfavored because disqualification can be a drastic

measure which courts should hesitate to impose except when absolutely

necessary” (internal quotation marks and citation omitted)).

13. Ramirez argues that the NJOAG’s simultaneous representation of

defendants in this matter and the Parole Board in the separate related matter

“could lead to a potential conflict of interest” and “could result in the [NJOAG’s]

dual loyalty” to defendants and the Parole Board. (ECF No. 19-1 p. 3 (emphasis

added).) However, such “[s]peculation, without more, is insufficient to carry the

heavy burden of showing that disqualification is appropriate.” Robinson v.

Paulhus, No. 19-12572, 2021 U.S. Dist. LEXIS 153006, at *7 (D.N.J. Aug. 21,

2021) (rejecting the plaintiff’s argument that the NJOAG should be disqualified

from representing two state employee defendants because “a conflict of interest

may arise” (emphasis in original)). Even if the NJOAG “ha[s] intimate

knowledge of the case” arising from its representation of the Parole Board on the

related appellate matter, defendants are still “statutorily entitled to be

represented by the [NJOAG].” Gussin v. Ely, No. 08-03723, 2009 WL 5205993,

at *1 n.1 (D.N.J. Dec. 29, 2009) (rejecting as “specious” the plaintiff’s “attempts

to disqualify the … [NJOAG] from representing the State Defendants”). There

is not necessarily a conflict of interest when the NJOAG represents a state agency

and that agency’s employees in separate related matters. See Marchisotto, 2022

WL 2341631, at *1 n.2 (rejecting the plaintiff’s arguments that the interests of

the former New Jersey Attorney General and the former director of the Division

of Criminal Justice were adverse, and thus holding the NJOAG’s simultaneous

representation of both did not present a conflict); Aruanno, 2009 WL 1173438, at

*2 (rejecting the plaintiff’s argument that the NJOAG was “operating under an

incurable conflict-of-interest” by representing the state employee defendants in

the case while simultaneously investigating the plaintiff’s separate complaints

lodged against those same defendants).

14. There are no conflict issues in the NJOAG’s representation of

defendants, as “[N.J.S.A.] 59:10A-1 … makes clear that NJOAG’s representation

of both [state employee defendants] is permissible because … the allegations

brought against them arose out of acts within the scope of their employment.”

Robinson, 2021 U.S. Dist. LEXIS 153006, at *8. In view of “the general rule of

representation” by the NJOAG of state employees named as the defendants in a

civil action, Ramirez’s “arguments for disqualification … are therefore flawed.”

Shaikh, 2022 WL 16716116, at *4.

Accordingly,

IT IS on this 26th day of June 2023 ORDERED that:

1. The Motion is DENIED.

2. The Clerk is directed to terminate ECF No. 19.

3. The parties are reminded of the telephone status conference scheduled

for September 7, 2023 at 10:30 a.m. (ECF No. 21.)

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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