THORPE v. THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEE RETIREMENT SYSTEM

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JUDY THORPE,

Plaintiff,

Civil Action No. 23-3788 (RK) (TQ)

Vv.

MEMORANDUM ORDER

THE BOARD OF TRUSTEES OF THE

PUBLIC EMPLOYEE RETIREMENT

SYSTEM, et al.

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court upon a Motion to Dismiss filed by Defendants

the Board of Trustees of the Public Employee Retirement System (“PERS”), Jeff S. Ignatowitz

(“Mr. Ignatowitz”’), and Robert E. Kelly (“Mr. Kelly”) (collectively with “John Does 1-100,”

“Defendants”), (“MTD,” ECF No. 16), and a Motion to Strike the Motion to Dismiss filed by pro

sé Plaintiff Judy Thorpe (“Plaintiff”), (“MTS,” ECF No. 17). For the reasons set forth below,

Plaintiffs Amended Complaint, “Am. Compl.,” ECF No. 5), is DISMISSED with prejudice, and

Defendants’ Motion to Dismiss and Plaintiff’s Motion to Strike are DENIED as moot.

I. BACKGROUND

The Court only briefly recites the background relevant to the present dispute.! Plaintiff is

a nurse who worked for the New Jersey Juvenile Justice Commission (the “JJC”). (ECF No. 1 at

' A more-detailed explanation of the facts underlying this matter can be found within the Court’s prior

Memorandum Opinion issued on November 13, 2023 (the “November Opinion”). (“Nov. Op.,” ECF No.

3, at 1-3.) On this point, the Court notes that the instant matter adds to Plaintiff’s lengthy—and

unsuccessful—history of litigating both her termination from the New Jersey Juvenile Justice Commission

(‘JIC’) and the subsequent denial of her retirement benefits from PERS. Plaintiff has litigated her

termination from the JIC in both state and federal court to no avail. See Thorpe v. State, State Juv. Just.

7.) Her employment was terminated based on her alleged refusal to participate in a “psychological

fitness-for-duty evaluation.” (/d. J 28, Ex. EE.) Plaintiff filed this action on July 14, 2023 against

PERS, which denied her application for retirement benefits (the ““Application”) on several grounds

due to her alleged for-cause termination of employment from the JIC. (See id. JJ 15, 29.) Plaintiff

filed an application to proceed in forma pauperis, (ECF No. 1-2), along with her initial Complaint,

(ECF No. 1). In her initial Complaint, Plaintiff sought to challenge PERS’s denial of the

Application. (/d. { 66.) Plaintiff brought claims under N.J.S.A. 43:1-3 and 43:15A-38, the New

Jersey Employer-Employee Relations Act (“SEERA”) N.J.S.A. 34:13A-1, et seq.,; N.J.A.C. 4A:6-

1.4(g); the Americans with Disabilities Act ““ADA”) 42 U.S.C § 12101, et seg.; 42 U.S.C. § 1981;

42. U.S.C. § 1983; New Jersey Law Against Discrimination (“LAD”); and Title VII of the Civil

Rights Act, and requested that the Court overturn PERS’s decision and approve her Application.

(Id. J§ 4, 61, 66.)

On November 13, 2023, the Court granted Plaintiff's in forma pauperis application. (ECF

No. 4.) However, the Court found that PERS was immune from suit under the Eleventh

Amendment, and dismissed the Complaint without prejudice. (Nov. Op. at 5-9.) The Court noted

in dicta in its November Opinion that an exception to Eleventh Amendment immunity, articulated

Comm'n, No, A-0104-11T1, 2015 WL 3602413 (N.J. Super. Ct. App. Div. June 10, 2015) (affirming

dismissal of Plaintiff?s complaint); Thorpe v. State, 124 A.3d 240 (N.J. 2015) (cert. denied); Thorpe v. New

Jersey, 578 U.S. 986 (2016) (cert. denied); Thorpe v. New Jersey, 677 F. App’x 46 (3d Cir. 2017) (affirming

dismissal of suit seeking to have state court proceedings reviewed). Plaintiff has also, to no avail, sued the

attorneys that represented her in her state court proceedings, see Thorpe v. Justin Swidler, Esq., No. A-

0649-17T3, 2019 WL 1997761 (N.J. Super. Ct. App. Div. May 7, 2019) (affirming dismissal of Plaintiff's

complaint), and the attorneys that represented her in her arbitration proceedings, see Thorpe v. Cipparulo,

No. 23-3590, 2024 WL 866525, (D.N.J. Feb, 29, 2024) (dismissing Plaintiffs complaint), reconsideration

denied, No. 23-3590, 2024 WL 1537476 (D.N.J. Apr. 9, 2024). Plaintiff has even litigated the PERS

decision at issue in the instant matter to no avail in state court. See Thorpe v. Bd. of Trustees, Pub.

Employees’ Ret. Sys., No, A-0689-20, 2023 WL 2395067 (N.J. Super. Ct. App. Div. Mar. 8, 2023)

(affirming PERS decision), cert. denied, 301 A.3d 1275 (N.J. 2023), and cert. denied, 144 S. Ct. 854 (2024).

Now, she turns to federal court to seemingly repeat the same litigation pattern she’s followed time and

again.

in Ex parte Young, 209 U.S. 123 (1908), permitted state officials to be sued in federal court where

the relief sought was a prospective injunction or declaratory relief related to an ongoing violation

of federal law. (Nov. Op. at 7.)

Sure enough, three weeks later, Plaintiff filed an Amended Complaint, adding Mr.

Ignatowitz and Mr. Kelly as named Defendants, as well as “John Does 1-100.” (See Am. Compl.

12, 13.) While it is not entirely clear from the Amended Complaint, it appears Mr. Ignatowitz.

was secretary to PERS, and Mr. Kelly was PERS’s legal counsel. (See id. [§ 12, 18.)

The Amended Complaint is substantively identical to Plaintiff’s initial Complaint, save for

adding Mr. Ignatowitz’s and Mr. Kelly’s names to the initial Complaint’s allegations, (compare

ECF No. 1 7 29, with Am. Compl. { 29), and bolding the font of certain allegations, (see, e.g., Am.

Compl. {ff 24, 44, 63). Plaintiff prefaced the Amended Complaint with an argument that the Court

(i) should proceed with “reasonable lenience” given Plaintiffs pro se status, (i1) should consider

the exhibits attached to her Amended Complaint, ? and (iii) should take judicial notice of certain

policies published by the Department of Treasury and Division of Pension and Benefits, as well

as “that [PERS], [Mr.] Ignatowitz and [Mr.] Kelly violated and manipulated policies regarding

ongoing pending litigation by prematurely rendering a decision to deny [the Application] when it

has been clear that pending litigation indeed exists in my case.” (Am. Compl. at 2-4.)

Before the Court could screen the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2),

a summons issued to Defendants on April 18, 2024. (ECF No. 8.) Defendants then filed a Motion

to Dismiss the Amended Complaint, arguing that (i) the Court lacked jurisdiction over the matter

* Plaintiff again attaches the same forty-seven (47) exhibits from her Complaint to her Amended Complaint,

which the Court has re-considered herein. (See Am. Compl., Exs. A-RR.) In deciding motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6), courts may consider exhibits attached to the complaint.

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also Delaware Nation v. Pennsylvania, 446 F.3d

410, 413 n.2 (3d Cir. 2006), as amended (June 14, 2006).

pursuant to the Rooker-Feldman doctrine, (ii) Defendants were immune from suit, and (iii) the

Amended Complaint failed to state any claims against Defendants. (See generally MTD.) Plaintiff

did not file an opposition. Instead, on July 10, 2024, Plaintiff filed a Motion to Strike the Motion

to Dismiss, arguing that the Motion to Dismiss “(1) was filed without leave of court; (2) was

violated [sic] in contravention of clear rules of procedure[, and] further[] it was not served timely

..; and (3) jurisprudence does not permit such successive applications, pleadings and motions.”

(MTS at 9.) Defendants opposed the Motion to Strike, arguing that Plaintiff was properly served

the Motion to Dismiss, which was timely-filed, via mail. (ECF No. 18 at 2.) Plaintiff replied. (ECF

No. 19.)

LEGAL STANDARD

Pursuant to 28 U.S.C. § 1915(e), the District Court may dismiss a case proceeding in forma

pauperis “at any time” if the Court determines that the action “(i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). While the statute “is

designed to ensure that indigent litigants have meaningful access to the federal courts,” Deutsch y.

United States, 67 F.3d 1080, 1084 (3d Cir. 1995) (quoting Neitzke v. Williams, 490 U.S. 319, 324

(1989)), the Court’s sua sponte screening power guards against potential “abuse” of “cost-free

access to the federal courts,” id. (citing Denton v. Hernandez, 504 U.S. 25, 29 (1992)).

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

U.S.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).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012). A court

must be mindful to hold a pro se plaintiff’s complaint to “less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972),

A ccomplaint’s claims must also be supported by “‘a short and plain statement... showing

that the pleader is entitled to relief’ and “a demand for the relief sought, which may include relief

in the alternative or different types of relief.” Fed. R. Civ. P. 8(a)(2)—(3). Although Federal Rule of

Civil Procedure 8’s (“Rule 8”) requirements likewise apply “flexibl[y]” to a pro se plaintiff, Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013), a plaintiff is “not absolved from

complying with Twombly and the federal pleading requirements merely because [she] proceeds

pro se.” Thakar v. Tan, 372 F. App’x 325, 328 Gd Cir. 2010) (citation omitted).

DISCUSSION

The Court notes at the outset that the “Amended Complaint... remains subject to screening

for dismissal ‘at any time’ pursuant to 28 U.S.C. § 1915(e)(2)(B).” Alexander v. Russo, No. 23-

1514, 2023 WL 3434038, at *1 (D.N.J. May 12, 2023); see also Karupaiyan v. Wipro Ltd., No.

23-2005, 2023 WL 4896672, at *2 (D.N.J. July 31, 2023) (“If Plaintiff chooses to file an amended

complaint, any claims he brings will still be subject to . . . sua sponte Rule 12(b)(6) analysis . . .”);

Freeman v. Moore, No. 23-2641, 2024 WL 1536743, at *3 (E.D. Pa. Apr. 9, 2024) (“Since

[plaintiff] is proceeding in forma pauperis, the Court may independently screen his Amended

Complaint and dismiss it ‘at any time’ pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) if, among other

things, it fails to state a claim.” (citing Brown v. Sage, 941 F.3d 655, 662 (3d Cir. 2019)). Given

that there appears to be some sort of dispute over the timeliness of Defendants’ Motion to Dismiss,

(see generally MTS),° the Court instead evaluates the Amended Complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B). The Court sua sponte finds that the Amended Complaint should be DISMISSED

with prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B), and Defendants’ Motion to Dismiss

and Plaintiffs Motion to Strike are DENIED as moot.

3 The Court notes it is highly skeptical of the merits of this dispute.

To begin its screening analysis, the Amended Complaint fails to cure the deficiencies

identified in the Court’s November Opinion with respect to Eleventh Amendment immunity. (See

Nov. Op. at 5-9.) The Eleventh Amendment limits a federal court’s jurisdiction over actions

against a state. See In re Hechinger Iny. Co. of Del., 335 F.3d 243, 249 (3d Cir. 2003), The state’s

sovereign immunity from suit under the Eleventh Amendment also extends to “arms of the state,”

such as state agencies and departments. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 99 (1984). Given that PERS has been found by courts in this District to be an “arm of the

state,” the Court previously found—and finds again—PERS is immune from suit. See Jones v.

Pub. Emp. Ret. Pensions Div., No. 09-5894, 2011 WL 6003122, at *3 (D.N.J. Nov. 29, 2011)

(finding that “PERS is an arm of the state and is entitled to Eleventh Amendment immunity,

provided the State has not waived its immunity and that Congress has not abrogated it” and

concluding that New Jersey had not consented to suit nor had Congress abrogated New Jersey’s

Eleventh Amendment immunity).

Keying in on the Ex parte Young exception referenced by the Court in its November

Opinion, Plaintiff added Mr. Ignatowitz and Mr. Kelly as named Defendants to the Amended

Complaint. (Am. Compl. 12.) Plaintiff's 41-page, 65-paragraph Amended Complaint contains

few allegations involving Mr. Ignatowitz and Mr. Kelly, all of which are either banal or

conclusory. (See, e.g., Am. Compl, at 4 (asking the Court to take judicial notice “that [PERS],

[Mr.] Ignatowitz and [Mr.] Kelly violated and manipulated policies regarding ongoing pending

litigation .. .”); id. ¢ 3 (arguing “[PERS], [Mr.] Ignatowitz, and [Mr.] Kelly applied the wrong

law’’); id. | 17 (noting Plaintiff appeared before “[PERS], [Mr.] Ignatowitz and [Mr.] Kelly” in

July 2021); id. § 18 (noting Plaintiff “submitted her written submission with exhibits ... via email

to Secretary Ignatowitz and Members of the Board”); id. § 29 (arguing that “[a]lthough [PERS],

[Mr.] Ignatowitz and [Mr.] Kelly, July 21, 2021 denial relied on the finding that [she] was removed

for cause... the facts in full demonstrate that [her] removal... was not ‘for cause... .’”)). Indeed,

Plaintiff never distinguishes the actions of Mr. Ignatowitz and Mr. Kelly from that of PERS and

does not clearly allege how Mr. Ignatowitz and Mr. Kelly were involved in PERS’s decision with

respect to the Application. This is concerning as the only relief Plaintiff seeks from this Court is

to re-review her Application. Ud. { 65.)

For the Ex parte Young exception to apply with respect to Mr. Ignatowitz and/or Mr. Kelly,

Plaintiff was required to state a claim “for prospective relief to end an ongoing violation of federal

law.” MCI Telecomm. Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). As the

Court found in its November Opinion, ‘While Plaintiff appears to be nominally seeking some form

of injunctive relief, Plaintiff fails to allege any facts from which the Court might infer that there

are future or ongoing violations of Plaintiffs rights under federal law.” (Nov. Op. (citing Surina

v. S. River Bd. of Educ., No. 20-2804, 2022 WL 264464, at *3 (3d Cir. Jan. 27, 2022) (finding that

the Ex parte Young exception did not apply because, although the injunctive relief sought was

phrased in prospective terms, there were no facts alleged indicating that purported violations of

constitutional law were ongoing)). For example, in Petit-Clair. v. State of New Jersey, a plaintiff

sued the State of New Jersey and related individuals for unlawful revocation of his benefits under

the State’s Public Employees Retirement System. No. 14-07082, 2016 WL 1558585, at *1 (D.N.J.

Apr. 18, 2016). The Court found that:

[T]he [Third Amended Complaint] asks that the Court ‘enter an

order placing Plaintiff Alfred J. Petit-Clair, Jr. m the position he

would have been had there been no violations of his constitutional

rights, with respect to his enrollment in PERS and guarantee of post-

retirement benefits.’ In other words, Petit-Clair seeks an injunction

that would require the State Defendants to perform contractual

obligations pursuant to a preexisting agreement. It thus follows that

Petit-Clair seeks relief from the State Defendants that is retroactive

in nature.

Petit-Clair., 2016 WL 1558585, at *2. Similarly here, Plaintiff seeks an injunction that would have

the Court order PERS to provide Plaintiff with benefits it already denied her. The Court finds that

the Amended Complaint fails to place Mr. Ignatowitz and Mr. Kelly into Ex parte Young’s

exception. Plaintiff does not allege facts to support an inference that PERS’s denial of the

Application constitutes an ongoing violation of Plaintiffs rights, and the Court is skeptical that

Plaintiff's sought-after relief can even be properly categorized as “prospective,” as she asks the

Court to retrospectively re-review PERS’s denial of the Application. (See Am. Compl. { 65.)

What is more, the Amended Complaint generally fails to state a claim against Defendants

in accordance with Rule 8. As mentioned previously, Plaintiff’s references to Mr. Ignatowitz and

Mr. Kelly in the Amended Complaint (which are rare) make, at most, conclusory allegations about

purported misconduct. (See, e.g, Am. Compl. at 3 (alleging Defendants “neglected and

mischaracterized” facts which amounted to “willful written falsification of material facts”), id. at

A (alleging Defendants “violated and manipulated policies”), id. ¢ 3 (alleging Defendants “applied

the wrong law’), id. { 4 (alleging Defendants “have been handing out pension payments in a

discriminatory manner”)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting Rule 8’s

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation’). Instead of focusing on allegations pertaining to Defendants, almost the entirety of

Plaintiff's Amended Complaint focuses on “disprov[ing] that [she] was removed for cause” from

the JIC. (See Am. Compl. {J 22-59.) Plaintiffs termination from the JJC is not the matter before

the Court, and the Court—much less Defendants—cannot otherwise discern how Defendants’

denial of the Application violates any of the federal or state statutes Plaintiff cites in the Amended

Complaint.’ (See 4] 4, 61, 66); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (noting a pleading must give a defendant “fair

notice” of claims and grounds upon which those claims rest).

Consequently, given that this is Plaintiff's second attempt to have the Court grant relief to

which Defendants are categorically immune, and Plaintiff was unable to meaningfully correct the

deficiencies identified in the initial Complaint beyond copying in Mr. Ignatowitz’s and Mr. Kelly’s

names to the initial Complaint’s allegations, Plaintiff's Amended Complaint is DISMISSED with

prejudice. Any amendment is futile as Plaintiff cannot evade the Eleventh Amendment to have the

Court re-review the Application, given that Plaintiff is not faced with an ongoing violation of

federal law. See Nemeth v. Off: of Clerk of Superior Ct. of New Jersey, 837 F. App’x 924, 927 (3d

Cir. 2020) (affirming dismissal with prejudice in suit involving Eleventh Amendment immunity);

Tonge v. New Jersey, 737 F. App’x 79, 80 (3d Cir. 2018) (affirming dismissal with prejudice on

Eleventh Amendment grounds where plaintiff’s “amended complaint did not differ materially from

his first effort.”’)

Even assuming Defendants fell into Ex parte Young’s exception, none of the federal statutes cited by

Plaintiff in the Amended Complaint can support a cognizable claim. See Rich yv. New Jersey, No. 14-2075,

2015 WL 2226029, at *9 (D.N.J. May 12, 2015) (citing MCT Telecomm. Corp., 271 F.3d at 506) (noting

the Ex parte Young exception only applies “to violations of the United States Constitution and to violations

of federal statutes.”). There is no private right of action under 42 U.S.C. § 1981. See McGovern v. City of

Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009). Plaintiffs claim under Title VII fails because Defendants

were not Plaintiff's employer. See Floyd v. New Jersey Casino Comm'n, No. 05-3949, 2007 WL 1797656,

at *3 (D.N.J. June 19, 2007) (“Plaintiff can present no Title VII claims against the Commission because the

Commission is not his employer.”) Similarly, the provisions Plaintiff cites of the ADA, by Plaintiff's own

admission in her Amended Complaint, pertain to the obligations of an employer. (See Am. Compl. { 31

(arguing that under the ADA, “an employer may not require a current employee to undergo a medical

examination...” and “the employer bears the burden” with respect to requesting medical evaluations.)

Finally, Plaintiffs claim under 42 U.S.C. § 1983 fails because Plaintiff does not allege how Defendants’

conduct (as opposed to the conduct of the JIC) “deprived the plaintiff of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” See Schneyder v. Smith, 653 F.3d 313, 319 Gd

Cir. 2011). Therefore, to the extent Defendants are not immune from suit, the Amended Complaint still

fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

CONCLUSION

For the foregoing reasons, Plaintiff's Amended Complaint is DISMISSED with prejudice

in accordance with 28 U.S.C. § 1915(e)(2)(B), and Defendants’ Motion to Dismiss and Plaintiffs

Motion to Strike are DENIED as moot.

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Therefore, IT IS on this 4th of October, 2024, ORDERED that:

1. Plaintiff's Amended Complaint, (ECF No. 5), is DISMISSED with prejudice pursuant to

28 ULS.C. § 1915(e);

2. Defendants’ Motion to Dismiss, (ECF No. 16), and Plaintiff’s Motion to Strike, (ECF No.

17), are DENIED as moot;

3, The Clerk’s Office is directed to TERMINATE the motions pending at ECF No. 16 and

ECF No. 17;

4, The Clerk’s Office is directed to CLOSE this matter; and

5. The Clerk’s Office shall serve on Plaintiff by regular U.S. mail this Memorandum Order to

her address of record.

(2

hm

ROBERT KIRSCH

UNITED STATES DISTRICT JUDGE

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