# LIU v. LU

> District Court, D. New Jersey · May 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10278736

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10278736

## How later opinions describe it (automated extraction)

- noting that “a private citizen... cannot be subject to liability under § 1983”
- stating that courts have an obligation to liberally construe pro se pleadings
- stating that “a private citizen cannot file a criminal complaint in [federal] court nor is there a federal right to require the Government to initiate criminal proceedings” (citing Linda R.S., 410 U.S.at 619)
- explaining that federal courts are precluded from exercising jurisdiction over a case brought by state-court losers challenging the state-court judgments rendered before the District Court proceedings commenced

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHINHUA LIU,
Plaintiff, Civil Action No. 23-3819 (MAS) (RLS)
V. MEMORANDUM OPINION
KUN LU, e/ al,
Defendants.

SHIPP, District Judge
This matter comes before the Court upon Defendants Kun Lu (“Lu”) and Russell
Lazovick’s (“Lazovick”) (collectively, “Defendants”) motions to dismiss Plaintiff Shinhua Liu’s
(“Plaintiff”) Complaint (ECF No. 1) pursuant to Federal Rule of Civil Procedure! 12(b)(6) (ECF
Nos. 20, 26). Plaintiff opposed (ECF Nos. 24, 30) and only Lazovick replied (ECF No. 29). The
Court has considered the parties’ written submissions and decides the motions without oral
argument pursuant to Local Civil Rule 78.1. For the reasons below, Defendants’ motions to dismiss
are granted.
I, BACKGROUND
Plaintiffand Defendant Lu were married in China in 1996 and approximately thirteen years
later, they were divorced. (Compl. § 10, ECF No. 1.) Following their divorce, Plaintiff and Lu
were involved in a host of contentious legal proceedings in the Superior Court of New Jersey,
Family Part (“State Court”). (Ud. 10-18.) In December 2011, Lu was granted sole legal and

' All references to “Rule” or “Rules” hereinafter refer to the Federal Rules of Civil Procedure.

physical custody of their now eighteen-year-old daughter, Susan Liu (“Susan”), and Plaintiff was
ordered to pay child support. Ud. § 10.) About a month later, the State Court issued a Final
Restraining Order (“FRO”) restraining Plaintiff from contacting Lu and certain family members,
including, but not limited to, their daughter Susan. (/d. § 11.)
Over the next decade, Plaintiff set out to vacate the FRO against him or, in the alternative,
amend the FRO to permit his contact with Susan and reinstate his parenting time. (/d. ¥{ 12-18;
see, e.g., Ex. 5 to Compl., ECF 1-3.) Plaintiff moved to vacate the FRO in State Court in May
2013, in March 2014, in December 2016, and again, in July 2017. K.L. v. S.L., A-1037-17, 2018
WL 4038312, at *1-3 (N.J. Super. Ct. App. Div. Aug. 24, 2018). In each instance, Plaintiff's efforts
were to no avail. /d. Notably, in October 2017, the State Court again denied Plaintiff's request to
modify the FRO as “[n]either [Lu] nor her family consented to dissolving the FRO” and “[Lu]
certified [that] she still live[d] in ‘extreme fear’ of [Plaintiff], as [did] [Susan] and her extended
family.” /d. at *3. The State Court further noted that this was “[Plaintiff’s] seventh motion to
modify provisions in the FRO, several of which were procedurally deficient even after the [State
Court] brought the deficiencies to [Plaintiffs] attention.” Jd.
Undeterred, Plaintiff appealed the October 2017 decision to the New Jersey Appellate
Division and sought certification from the New Jersey Supreme Court, neither of which ruled in
his favor. See K.L., 2018 WL 4038312, at *4 (“[W]e are satisfied the record fully supports the

After receiving warnings from the State Court about “harassing” litigation, the State Court
entered an order on March 15, 2017 (the “March 15, 2017 Order”) that Plaintiff was required to
obtain pre-approval before filing future “FM” motions. (Compl. 15.) Plaintiff challenged the
March 15, 2017 Order, and this too was unsuccessful. K.Z., 2018 WL 4038312, at *5
(“Considering the history of repetitive, procedurally deficient, and meritless filings by [Plaintiff],
we cannot conclude the trial court abused its discretion by continuing the pre-approval process.”).

Family Part’s decision to deny [Plaintiff's] motion in its entirety”); see also K.L. v. S.L., 203 A.3d
884 (N.J. 2019) (denying certification).
This protracted history of litigation pressed on when, in February 2023, Plaintiff made a
request for Susan’s academic records with the Ridge High School. (Compl. § 19.) In response,
counsel for the Bernards Township Board of Education (“Bernards Township BOE”), on behalf of
the Ridge High School, informed Lu’s then-counsel that it would provide Plaintiff with access to
Susan’s records “[uJnless [it] receive[d] specific direction on this issue from a court of competent
jurisdiction by March 24, 2023[.]” Ud; Ex. 15 to Compl., ECF No. 1-4.) In light of the Bernards
Township BOE’s response, Lu timely filed an emergent application with the State Court to prevent
Plaintiff's access to Susan’s records. (Compl. { 20.) Specifically, Lu stated that the information
contained in Susan’s academic file contained “private contact information which would violate the
terms of the FRO if released[,]” such as “[Lu’s] address, telephone number, and email address.”
(Ex. 17 to Compl. *44, ECF No. 1-4.) Lu raised that, if the academic file was released, there was
a risk of irreparable harm “given [Plaintiffs] history of... domestic violence toward[s] [Lu] and
[their] daughter.” (/d.)
After a hearing and oral argument, the State Court issued an order on May 1, 2023 (the
“May 1, 2023 Order”), in favor of Lu, restricting the release of Susan’s academic records to
Plaintiff. (Compl. § 29; see also Ex. B to Lu Mot. Dismiss, ECF No. 26-4.) In its statement of
reasons, the State Court noted that Lu provided “numerous examples of [Plaintiff’s] controlling
and abusive behavior during and after the parties’ marriage[,]” and that an FRO was already issued
“to protect both [Lu] and Susan[.]” (Ex. B to Lu Mot. Dismiss 5) “Given the likelihood that
[Plaintiff] may use the information from Susan’s academic file in an abusive manner in violation
of the existing FRO,” the State Court found that “[Lu] had shown emergent relief was warranted.”

(id.° The Bernards Township BOE and Lazovick, the principal of the Ridge High School,
complied with the May 1, 2023 Order and Susan’s “student records were not released to Plaintiff.”
(Lazovick Mot. Dismiss 4, ECF No. 20-1.)
Months later, Plaintiff initiated the instant federal action against Lu and Lazovick, in his
individual capacity and his official capacity. (See generally Compl.) The Complaint alleges the
following causes of action*: (1) the State Court’s issuance of the FRO violated Plaintiff's
procedural due process rights under the Fourteenth Amendment (“Count One”) (id. § 61-66);
(2) the State Court’s restriction on Plaintiff's filing of FM motions violated Plaintiffs procedural
due process rights under the Fourteenth Amendment (“Count Two”) (id. 67-70); (3) the State
Court’s termination of Plaintiff's parental rights violated his procedural and substantive due
process rights under the Fourteenth Amendment (“Count Three”) (id. 71-74); (4) the State
Court’s issuance of the FRO constituted “cruel or unusual punishment” under the Eighth
Amendment (“Count Four”) (id. 75-77); (5) the State Court’s FRO and subsequent order
preventing Plaintiff's access to Susan’s education records violated federal law (“Count Five”)
(id. {9 78-81); (6) the State Court’s FRO violated state law (“Count Six”) (id. Jf 82-85); and (7)
Plaintiff is entitled to punitive damages (“Count Seven”) (id. §[] 86-88). Plaintiff seeks, among

3 In essence, the State Court found that Plaintiff’s contacting of the Bernards Township BOE for a
record request was “a classic attempt at an end-run around the restraints of the FRO and the
numerous [o]rders of [the State Court] and the Appellate Division.” (Ex. B to Lu Mot. Dismiss
8-9.) The State Court also noted that Susan, “[uJpon turning 18 years old... may elect to have
herself removed from the FRO as a protected party and may choose to share her academic records,
medical records, personal records,... and/or other identifying information with defendant or
anybody she so chooses.” (/d. at 5.)
* While the allegations are not entirely clear, the Court construes them in a light most favorable to
the pro se Plaintiff. See Holley v. Dep’t of Veteran Affs., 165 F.3d 244, 247-48 (3d Cir. 1999)
(stating that courts have an obligation to liberally construe pro se pleadings).

other things, that this Court declare the State Court’s FRO and the May 1, 2023 Order restricting
his access to Susan’s education records as unconstitutional. (/d. at 33-34.)
Now before the Court are Lazovick and Lu’s motions to dismiss the Complaint under Rule
12(b)(6). (See Lu. Mot. Dismiss; Lazovick Mot. Dismiss.) In moving to dismiss, Defendants
principally argue that Plaintiff’s Complaint is subject to dismissal under the Rooker-Feldman
doctrine. (Lazovick Mot. Dismiss 10-12; Lu Mot. Dismiss? 1-2.) That is, Defendants contend that
Plaintiff brings this action to collaterally attack the State Court’s orders that ruled unfavorably
against him.° ([bid.) Plaintiff opposed the motions (ECF Nos. 24, 30) and Lazovick replied (ECF
No. 29).
IL. LEGAL STANDARD
A. Rooker-Feldman
It is well established that “[f]ederal courts are courts of limited jurisdiction.” Kokkonen y.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Since subject matter jurisdiction is a
threshold requirement for consideration of the sufficiency of the underlying claims, the Court’s
analysis begins there.” Frame v. Lowe, No. 09-2673, 2010 WL 503024, at *5 (D.N.J. Feb. 8, 2010).
It is well settled that federal district courts do not have appellate jurisdiction “over
challenges to state court decisions in particular cases arising out of judicial proceedings even if
those challenges allege that the state court’s action was unconstitutional.” District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983); see also Rooker v. Fidelity Tr. Co., 263 U.S.
413, 416 (1923). This rule, which has come to be known as the Rooker-F'eldman doctrine, provides

> Like Plaintiff, Defendant Lu is proceeding pro se.
° Defendants also argue that Plaintiff's Complaint fails to state a claim upon which relief can be
granted. (See generally Lazovick Mot. Dismiss; Lu Mot. Dismiss.)

&

that only the United States Supreme Court may review decisions of a state court under the authority
vested by 28 U.S.C. § 1257(a). Parkview Assoc. P’ship v. City of Lebanon, 225 F.3d 321, 324 (3d
Cir. 2000). Thus, where exercising jurisdiction over a case would result in the reversal or
modification of a state court judgment, the district court has no subject matter jurisdiction to hear
the case. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (explaining
that federal courts are precluded from exercising jurisdiction over a case brought by state-court
losers challenging the state-court judgments rendered before the District Court proceedings
commenced).
A challenge under the Rooker-Feldman doctrine for lack of subject-matter jurisdiction is a
factual challenge. Mirayes v. O’Connor, No. 13-934, 2013 WL 6501741, at *3 (D.N.J. Dec. 11,
2013). When evaluating a factual challenge, a court “is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Mortensen v. First Fed Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977). Unlike a facial analysis, no presumption of truth attaches to a
plaintiff's allegations in a factual challenge and “the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Jd. When
faced with a factual challenge, the plaintiff bears the burden of establishing that jurisdiction exists.
Id.
B. Rule 12(b)(6)
When analyzing a Rule 12(b)(6) motion, a district court conducts a three-part analysis.
Malleus vy. George, 641 F.3d 560, 563 (3d Cir. 2011). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim... .” Ashcroft v. Igbal, 556 U.S. 662, 675 (2009),
Second, the court must accept as true all of a plaintiff's well-pleaded factual allegations and
construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (citing Jgbal, 556 U.S. at 678). The court, however, must disregard
any conclusory allegations proffered in the complaint. /d. at 210-11. Finally, once the well-pleaded
facts have been identified and the conclusory allegations ignored, a court must determine whether
the “facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim
for relief.’” Fowler, 578 F.3d at 211 (quoting Jgbal, 556 U.S. at 679).
Iii. ANALYSIS
A. Rooker-Feldman Doctrine
The Court, as it must, begins with its independent obligation to satisfy itself of jurisdiction.
See Frame, 2010 WL 503024, at *5. The Rooker-Feldman doctrine precludes this court from
exercising subject matter jurisdiction over a plaintiffs claims where four elements are satisfied:
“(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the
state-court judgments; (3) those judgments were rendered before the federal suit was filed; and
(4) the plaintiff is inviting the district court to review and reject the state judgments.” Robinson vy.
N.J. Mercer Cnty. Vicinage-Fam. Div., 514 F. App’x 146, 150 (3d Cir. 2013) (quoting Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)). The Court finds
that all four criteria are met here.
The first and third elements are satisfied here. Plaintiff pleads that he lost in State Court
and that the orders he now seeks to challenge were entered against him before filing this federal
action. (Compl. § 7.) Specifically, Plaintiff challenges: (1) the FRO entered in favor of Lu on
January 5, 2012; (2) the May 1, 2023 Order denying his access to Susan’s educational records; and
(3) the State Court’s March 15, 2017 Order imposing a “pre-approved” restriction on Plaintiff's
filing of future “FM” motions. (See Compl. 33-34.)

As to the second element, Plaintiff alleges to have suffered injuries caused by the
state-court judgments. In Great Western, the Third Circuit provided a hypothetical example of
where Rooker-Feldman applies, which, in large part, mirrors the circumstances presented in this
case:
Suppose a state court, based purely on state law, terminates a
father’s parental rights and orders the state to take custody of his
son. If the father sues in federal court for the return of his son on
grounds that the state judgment violates his federal substantive
due-process rights as a parent, he is complaining of an injury caused
by the state judgment and seeking its reversal.
Great W. Mining, 615 F.3d at 166-67 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d
77, 87 (2d Cir. 2005)).
Indeed, since Great Western, the Third Circuit in Walsh provided additional clarity that
Plaintiff's claims are barred by Rooker-Feldman. See Walsh v. Walsh, 763 F. App’x 243, 245 (3d
Cir. 2019). Like this case, the Walsh plaintiff unsuccessfully challenged the entry of a final
restraining order in state court:
After a hearing, [the state court] granted a restraining order that
prevented [the plaintiff] from having contact with his children. [The
plaintiff] sought reconsideration, which [the state court] denied, and
the Appellate Division of the Superior Court affirmed the denial of
the motion for reconsideration.
Id. (citing KW. v. .W., No. A-2719-15T2, 2017 WL 2854440, at *3 (N.J. Super. Ct. App. Div.,
2017)). Having lost in state court, the Walsh plaintiff brought a federal action before this Court
alleging to have suffered “defamation, misrepresentation, intentional infliction of emotional
distress, and negligent infliction of emotional distress, respectively, due to the issuance of the
FRO.” See Walsh v. Walsh, No. 16-4242, 2017 WL 923860, at *3 (D.N.J. Mar. 8, 2017), aff'd, 763
F. App’x 243, 246 (3d Cir. 2019). The Third Circuit affirmed this Court’s dismissal of Plaintiff's
claims under the Rooker-Feldman doctrine:

[The plaintiff] lost in state court. His claims allege, at least in part,
that this order injured him by separating him from his children, That
order preceded his federal action. Finally, he contends that the
restraining order violates his constitutional rights, and thus asked the
District Court to directly review and reject it.
Walsh, 763 F. App’x at 245 (emphasis added).
Despite Plaintiffs assertions to the contrary, every Count in the Complaint alleges
violations of Plaintiffs parental rights and injuries arising from being separated from his daughter
pursuant to the FRO or otherwise being denied access to his daughter’s academic records. (See
Compl. *40’; id. {4 61-88.) He claims to have suffered emotional and mental distress and requests
compensatory and punitive damages because of the State Court’s orders and the FRO. (/d.)
Accordingly, it is self-evident that Plaintiff is complaining of injuries caused by the state-court
judgments.
The fourth element is also satisfied. This element requires the Court to evaluate whether
“[P]laintiff's claims will require appellate review of [the] state-court decision[] by the [D]istrict
[Clourt.” Great W. Mining, 615 F.3d at 169. This requirement will not be satisfied where a
“federal plaintiff present[s] some independent claim,’ even if that claim denies a legal conclusion
reached by the state court.” Jd. (quoting Exxon Mobil, 544 U.S. at 293).
Here, Plaintiff seeks a declaratory judgment that “the FRO is unconstitutional” and that the
March 15, 2017 Order restricting his filing of FM motions without preapproval “is
unconstitutional”. (Compl. 33-34.) Plaintiff further seeks “[t]o enjoin the continued enforcement
of the unconstitutional FRO,” “[t]o enjoin the continued enforcement of the unconstitutional
‘pre-approved’ restriction on [his] FM motions[,]” and “[t]o enjoin the continued enforcement of
the [S]tate [C]Jourt’s order... regarding Susan’s records [which was allegedly] ‘ratified’ by the

7 Page numbers preceded by an asterisk reflect page numbers atop the ECF header.

unconstitutional FRO.” Ud.) In seeking injunctive reliefto preclude enforcement of the State Court
judgments, Plaintiff is collaterally challenging the State Court decisions against him. See id. In
short, Plaintiff's attempt to use the federal court system as a means of overturning judgments
rendered in the State Court proceedings is an exercise expressly prohibited under the
Rooker-Feldman doctrine.
Because all four elements are met, and considering the Third Circuit has spoken clearly on
this issue, the Court dismisses any and all claims in the Complaint challenging the FRO, the March
15, 2017 Order, and the May 1, 2023 Order. These claims are dismissed with prejudice.® See
Cuevas v. Wells Fargo Bank, N.A., No. 14-6208, 2015 WL 5123746, at *5 (D.N.J. Sept. 1, 2015)
aff'd, 643 F. App’x 124, 126-27 (3d Cir. 2016) (applying Rooker-Feldman doctrine and dismissing
complaint with prejudice for lack of subject-matter jurisdiction).
B. Independent Injuries
While most claims in the Complaint are barred under the Rooker-Feldman doctrine, the
Court will consider any alleged independent injuries caused by Defendants during the
domestic-relations proceedings. Walsh, 763 F. App’x at 245. Such claims are not barred under
Rooker-Feldman. Id.; see also Great W. Mining, 615 F.3d at 171 n.5 (“even if the state-court
decision was justified, a plaintiff could nevertheless be entitled to some relief based on the
violation of his or her due process rights, which is an independent injury.”’) (citing Carey v. Piphus,
435 U.S. 247, 266 (1978))); see also Kawall vy. New Jersey, 678 F. App’x 86, 87-88 (3d Cir. 2017)
(per curiam) (addressing separately a plaintiff's claim of “some independent injury caused by [the
opposing party]’s conduct during [state court] proceedings”).

8 To the extent Plaintiff seeks to challenge any other prior State Court orders rendered during the
domestic-relations proceedings, such orders are also subject to Rooker-Feldman and must be
dismissed with prejudice.

10

As to Lu, Plaintiff appears to allege independent injuries caused by a conspiracy under 42
§ 1985 (Section 1985”), and 18 U.S.C. §§ 241 and 242, as well as due process and equal
protection violations under the Eighth and Fourteenth Amendments, respectively. (See generally
Compl.) As to Lazovick, Plaintiff only appears to allege claims of conspiracy under Section 1985,
(Ud. at 34-35.) The merit of any independent causes of action alleged in the Complaint will be
addressed in turn.
i. I8US.C. $§ 241 and 242
First, PlaintifPs Complaint alleges claims against Defendants for violations of criminal
conspiracy statutes, 18 U.S.C. §§ 241 and 242. (Compl. {§ 61-81.) It is well established, however,
that a private citizen may not initiate criminal prosecution under 18 U.S.C. §§ 242 or 241. See
Rodriguez v. Salus, 623 F. App’x 588, 589 n.1 (3d Cir. 2015) (discussing that a plaintiffs claims
attempting to initiate criminal charges under 18 U.S.C. §§ 241 or 242 were properly dismissed
because “there is no federal right to require the government to initiate criminal proceedings.”
(citing Linda RS. v. Richard D., 410 U.S. 614, 619 (1973)));; see also Wheeler v. Ulisny, 482 F.
App’x 665, 669 (3d Cir. 2012) (stating that “a private citizen cannot file a criminal complaint in
[federal] court nor is there a federal right to require the Government to initiate criminal
proceedings” (citing Linda R.S., 410 U.S.at 619)). For this reason, Plaintiffs claims under 18
§§ 241 and 242 fail as a matter of law and are dismissed with prejudice.
il. Eighth Amendment
Under Count Four, Plaintiff alleges a claim against Lu for “cruel and unusual punishment”
under the Eighth Amendment in connection with the termination of his parental rights. (Compl.
{{ 75-77.) “[T]he Eighth Amendment prohibits the infliction of cruel and unusual punishment
upon prisoners[.| [I]t applies only ‘after [the State] has secured a formal adjudication of guilt in

11

accordance with due process of law.’” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581
(3d Cir. 2003) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Thus, the
Eighth Amendment, which applies only to convicted and sentenced prisoners, is inapplicable.
Plaintiff's Eighth Amendment claim is dismissed with prejudice.
iii. Section 1985 — Conspiracy
Next, Plaintiff alleges that Defendants “colluded to violate [his] constitutional parental
rights” in violation of Section 1985(3). (Compl. {| 66.) Section 1985 provides a cause of action
against persons who “conspire . . . for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and immunities
under the laws.” See 42 U.S.C. § 1985(3). To state a claim, “a plaintiff must allege: (1) a
conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, and person or class of persons to the equal protection of the laws; (3) an act
in furtherance of the conspiracy; and (4) an injury to a person or property or the deprivation of any
right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.
1997).
The allegations in the Complaint are insufficient to raise a claim of conspiracy under
Section 1985. First and foremost, there are no factual allegations to suggest that Defendants were
motivated by discriminatory animus to deprive Plaintiff of equal protection of the laws. Burgos v.
Canino, 641 F. Supp. 2d 443, 457-58 (E.D. Pa. 2009), aff'd, 358 F. App’x 302 (3d Cir. 2009)
(“The language requiring intent to deprive [another] of equal protection” indicates “that there must
be some racial, or perhaps otherwise class-based discriminatory animus behind the conspirators’
action.”) (quoting Kush v. Rutledge, 460 U.S. 719, 726 (1983)). This alone is a sufficient basis to
dismiss the claim.

Plaintiff also does not allege sufficient facts to show a conspiracy existed. See Startzell v.
City of Phil., 533 F.3d 183, 205 (3d Cir. 2008) (providing that to constitute a conspiracy, there
must be a meeting of the minds); Shearin v. E.F. Hution Grp., Inc., 885 F.2d 1162, 1166 (3d Cir.
1989) (“To plead conspiracy adequately, a plaintiff must set forth allegations that address the
period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose.”).
As to Lazovick, all that is alleged is the correspondence from the Bernards Township BOE
to Defendant Lu’s former counsel. (Compl., Ex. 15.) This correspondence does not suggest any
wrongdoing. (/d.) Rather, the Bernards Township BOE merely advised that it would turn Susan’s
records over to Plaintiff “[uJnless it receive[d] specific direction on this issue from a court of
competent jurisdiction[.|” Vd.) Lu timely filed an emergent application and successfully obtained
the May 1, 2023 Order thereafter preventing Plaintiff’s access to his daughter’s records, and
Lazovick and the Bernards Township BOE lawfully complied with the State Court’s directive.
(Lazovick Mot. Dismiss 2 (noting “Lazovick was [merely] complying with a lawful State Court
[o]rder.”).) In fact, had Lazovick complied with Plaintiff’s requests, he would have violated the

12

State Court’s Order. Ud.) Without more, Plaintiffs allegations do not state a claim against
Lazovick under Section 1985 and must be dismissed.”
The same holds true as to Plaintiff's conspiracy claims against Lu. Plaintiff broadly alleges
that Lu and her prior counsel somehow: (1) colluded with the Honorable Thomas C. Miller, J.S.C.
(ret.) to terminate Plaintiffs parental rights and issue the permanent FRO (Compl. § 74);
(2) colluded with other judges to enjoin Plaintiff from filing future motions (id 64, 70); and
(3) colluded with Lazovick to deny him access to Susan’s academic records (id. § 19). These
allegations of collusion, however, are without any discernable factual support. Young v. Kann, 926
F.2d 1396, 1405 n.16 (3d Cir. 1991) (“[]]t is a longstanding rule in the Third Circuit that a mere
allegation...of conspiracy or collusion without alleging the facts which constituted such
conspiracy or collusion is a conclusion of law and is insufficient [to state a claim].”). At this
juncture, the Complaint merely shows that Lu lawfully obtained an FRO against Plaintiff and
otherwise complied with the State Court’s orders. (See Lu Mot. Dismiss 2.) Indeed, “merely
resorting to the courts and being on the winning side of a lawsuit does not make a party a
co-conspirator or a joint actor with the judge.” Dennis v. Sparks, 449 U.S, 24, 28 (1980).

° The Court recognizes Lazovick’s arguments that he is entitled to absolute and qualified
immunity. (Lazovick Mot. Dismiss 13-15.) At present, the Court cannot decipher what specific
constitutional violations Plaintiff alleges, and for that reason, the Court will not venture into
Lazovick’s immunity arguments. Winfield Scott Tower Urb. Renewal LP vy. Luciani, No. 23-133,
2024 WL 383980, at *8 n.8 (D.N.J. Feb. 1, 2024) (“The Court stops its analysis here because a
qualified immunity defense, for example, requires a Court to assess ‘whether the facts alleged []in
the context of a motion to dismiss ... make out a violation of a constitutional right.’”) (quoting
Karns v. Shanahan, 879 F.3d 504, 520 Gd Cir. 2018)). Because the Court cannot decipher what
constitutional violations occurred or the facts underlying them, assessing immunity would be
premature without first offering Plaintiff an opportunity to amend. /d. If Plaintiff chooses to file
an amended complaint, and if Lazovick still believes his immunity defenses apply, Lazovick may
reassert such arguments in a subsequent motion to dismiss.

1A

Because all of Plaintiffs conspiracy theories are conclusory and devoid of factual detail,
the Court dismisses all conspiracy claims against Lu.
iv. Section 1983 — Fourteenth Amendment
The Complaint also brings general allegations that Lu violated Plaintiffs constitutional
rights under the Fourteenth Amendment. (See generally Compl.) This claim is similarly dismissed.
The procedural vehicle by which federal constitutional claims may be brought in federal
court is 42 U.S.C, § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of
a right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). In other words, a plaintiff “must establish that she was deprived of a federal
constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)
(emphasis added).
Whether a defendant is acting under color of state law — i.e., whether the defendant is a
state actor — depends on whether there is “‘such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the State itself.” Leshko v.
Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotation marks omitted) (quoting Brentwood
Acad. y. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)). In answering that
question,
[the Third Circuit has] outlined three broad tests generated by
Supreme Court jurisprudence to determine whether state action
exists: (1) whether the private entity has exercised powers that are
traditionally the exclusive prerogative of the state; (2) whether the
private party has acted with the help of or in concert with state
officials; and (3) whether the state has so far insinuated itself into a
position of interdependence with the acting party that it must be
recognized as a joint participant in the challenged activity.
Kach y. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (cleaned up).

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Here, Lu is a private citizen, not a state actor. Dongon v. Banar, 363 F. App’x 153, 156 (3d
Cir, 2010) (noting that “a private citizen... cannot be subject to liability under § 1983”). Plaintiff
has not pled legitimate facts to support an inference of a “close nexus” between Lu’s private
conduct and the state itself such that the challenged actions can fairly be treated as actions of the
state. Leshko, 423 F.3d at 339. And the mere fact that Lu has engaged in litigation with Plaintiff
does not convert her into a state actor. See Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir.
1985) (“[O]ne who has obtained a state court order or judgment is not engaged in state action
merely because it used the state court legal process.”).
While the Court recognizes that a private party may qualify as state actor if she conspires
with a state official, Walsh, 763 F. App’x at 246, for the same reasons delineated above, Plaintiff
has not pled any meaningful facts that Lu was involved in a conspiracy. For this reason, Plaintiff
has not adequately alleged a § 1983 claim against Lu and this claim will be dismissed.
v. Remaining State Law Claims
Finally, Plaintiff alleges state law claims under Count Six pursuant to the Prevention of
Domestic Violence Act (“PVDA”), N.J.S.A. 2C:25-17 to -35. (Compl. § 31.) These allegations are
equally difficult for the Court to discern. Nevertheless, because the Court dismisses all of
Plaintiffs federal claims, it will dismiss any pendent state law claims for lack of jurisdiction. See
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are

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dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”).'°
C. Leave to Amend
As this is a first dismissal, the Court grants pro se Plaintiff an opportunity to file an
amended complaint within forty-five days. See, e.g., In re: Lamictal Indirect Purchaser &
Antitrust Consumer Litig., 172 F. Supp. 3d 724, 739 (D.N.J. 2016). In any subsequent pleading,
Plaintiff must take care to outline specific facts for this Court and for Defendants as to exactly how
the wrongful behavior Plaintiff alleges violates the Constitution, the Fourteenth Amendment, and
42 U.S.C. §§ 1983 and 1985. If Plaintiff fails to file an amended complaint within this timeframe,
his federal claims will be dismissed with prejudice.
IV. CONCLUSION
For the reasons stated above, the Court grants Defendants’ motions to dismiss. Plaintiff's
claims under 18 U.S.C. §§ 241 and 242, the Eighth Amendment, and any claims that are subject
to the Rooker-Feldman doctrine are dismissed with prejudice. Plaintiff's remaining claims are
dismissed without prejudice. Any proposed amended complaint must address and fix the
deficiencies identified in the within Memorandum Opinion. An Order consistent with this
Memorandum Opinion will be entered.

UNITED STATES DisTRICT JUDGE

To the extent Plaintiff brings any other claims against Defendants, the factual underpinnings or
legal merit of such claims are not clear from the face of the Complaint. The Court declines any
invitation to engage in a full analysis of the potential constitutional theories that Plaintiff intends
to bring against Defendants without any factual context. Rayford v. Amazon Logistics, Inc., No.
21-20591, 2022 WL 4011037, at *3 (D.N.J. Sept. 2, 2022) (“[T]he Court need not speculate as
[p]laintiff, even pro se, bears the burden of adequate pleading.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278736. Public record. Not legal advice.