MUTARAMBIRWA

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JEAN BOSCO MUTARAMBIRWA,

Civil Action No. 20-6155

Plaintiff,

OPINION

v.

TOWNSHIP OF WEST ORANGE, et al., April 24, 2026

Defendants.

SEMPER, District Judge.

THIS MATTER comes before the Court upon the November 14, 2025 motion of the State

Defendants1 to dismiss the Third Amended Complaint (“TAC”) of pro se Plaintiff Jean Bosco

Mutarambirwa, (ECF 104), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief can be granted. (ECF 186, “State Motion” or “State Mot.”) The

Township Defendants2 also moved to dismiss Plaintiff’s TAC on November 17, 2025. (ECF 187,

“Town Motion” or “Town Mot.”) Plaintiff opposed Defendants’ motions on December 1, 2025.

(ECF 192, “Opposition to State” or “Opp. to State”; ECF 191, “Opposition to Town” or “Opp. to

Town.”) Defendants replied on December 15, 2025. (ECF 195, “State Reply”; ECF 194, “Town

Reply.”) The Court has decided the motions upon the submissions of the parties, without oral

argument, pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the

1 The State Defendants are Attorney General Matthew J. Platkin, in his official capacity as

Attorney General of New Jersey, Governor Phil Murphy, in his official capacity as Governor of

New Jersey, and the Honorable Louise G. Spencer. (See generally TAC.)

2 The Township Defendants are the Township of West Orange, the Honorable Dennis Dowd, and

Sergeant George Lopez. (See generally TAC.)

reasons stated below, the State and Township Defendants’ Motions to Dismiss Plaintiff’s TAC are

GRANTED and Counts I-VII against the State and Township Defendants are DISMISSED with

prejudice. The Court has also sua sponte reviewed Plaintiff’s TAC for sufficiency as to pro se

Defendant Mediatrice Mutarambirwa (“Mediatrice”) pursuant to Federal Rule of Civil Procedure

8(a). For the reasons stated below, Count IV of Plaintiff’s TAC against Defendant Mediatrice is

DISMISSED with prejudice.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY3

Plaintiff brings this action stemming from an April 2020 restraining order proceeding in

the West Orange Municipal Court, Family Division (“New Jersey Family Court”). (TAC ¶¶ 17-

54.) In early 2020, Plaintiff alleges that Mediatrice, Plaintiff’s wife at the time of the events giving

rise to this action, informed him that she had “contracted a venereal disease as a result of an extra-

marital affair.” (Id. ¶ 16.) Mediatrice then initiated a temporary restraining order (“TRO”)

proceeding and alleged that Plaintiff had abused her verbally and physically. (Id. ¶¶ 17-19.)

Defendant Judge Dennis Dowd issued a TRO on April 6, 2020. (Id. ¶ 18.) Defendant Judge Louise

Spencer subsequently issued a final restraining order (“FRO”) on May 13, 2020. (Id. ¶¶ 21-23.)

Judge Spencer found that Plaintiff had committed the predicate offense of Harassment under the

New Jersey Harassment Statute, N.J. Stat. Ann. § 2C:33-4(a) & (c), due to Plaintiff’s “controlling”

of Mediatrice. (TAC ¶¶ 21-23, 29.) And pursuant to her authority under § 2C:25-28(j) of the New

Jersey Prevention of Domestic Violence Act (“PDVA”), N.J. Stat. Ann. §§ 2C:25-17 to -35, Judge

3 When considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to accept as

true allegations in the complaint and all reasonable inferences that can be drawn therefrom. See

Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). The Court also considers any “document

integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1997). The Court construes pro se filings liberally. See Marcinek v.

Comm’r, 467 F. App’x 153, 154 (3d Cir. 2012) (holding that courts are “under an obligation to

liberally construe the submissions of a pro se litigant”).

Spencer forbade Plaintiff from possessing a firearm. (TAC ¶¶ 21-23.) Plaintiff filed an appeal on

May 26, 2020. (Id. ¶ 38.) Judge Spencer then presided over a proceeding to address the custody

of Plaintiff and Mediatrice’s two children. (Id. ¶¶ 39-44.) On June 12, 2020, Judge Spencer issued

a Gag Order instructing Plaintiff and Mediatrice to not make disparaging remarks about each other

in front of their children. (Id. ¶ 46.) The Appellate Division of the Superior Court of New Jersey

affirmed the FRO on May 7, 2021.4 (ECF 52-1). Plaintiff applied for a permit to possess a firearm

in the State of New Jersey on June 4, 2021. (TAC ¶ 50.) Plaintiff received a denial of a firearm

permit from Defendant George Lopez of the West Orange Police Department on August 15, 2021.

(Id. ¶¶ 51-52.) Around this same timeframe, Mediatrice found Plaintiff’s biometric gun safe in

her residence and notified the New Jersey Family Court. (Id. ¶¶ 228-33.) On October 8, 2021, the

court ordered Plaintiff to open his gun safe at the West Orange Police Department. (Id. ¶¶ 234-

36.) Plaintiff complied and the gun safe did not contain a firearm. (Id.) The Supreme Court of

New Jersey denied Plaintiff’s petition for certification on November 16, 2021. (ECF 61-1.) The

New Jersey Family Court terminated Plaintiff’s custody of his two children on December 22, 2021,

for violating the Gag Order. (TAC ¶¶ 53-54.)

On May 20, 2020, prior to exhausting the appellate process in state court, Plaintiff initiated

this federal civil action. (See ECF 1.) In the Complaint, Plaintiff challenged the TRO and FRO

4 The Appellate Division found that the FRO was predicated on:

[Plaintiff’s] repeated actions to compel [Mediatrice] to return to their bedroom,

including removing a door from a guestroom where she was sleeping, which he did

with the express intent to cause her to “come over” to their bedroom; preventing

her from sleeping on an air mattress in another room by deflating it and grabbing

the pump from her when she tried to reinflate it; preventing her from sleeping on

another mattress in the children’s room by moving it to the parties’ bedroom where

he was sleeping; sending her late-night texts threatening to replace her, and

repeatedly demeaning [her] in the presence of their children, including questioning

their eleven year-old son about engaging in incest with [Mediatrice].

(ECF 52-1 at 16-17.)

by alleging that the New Jersey Family Court violated his constitutional rights. (See generally id.)

Plaintiff subsequently filed three amended complaints, filing the TAC on August 25, 2022. (ECF

4; ECF 6; ECF 104.) In the TAC, Plaintiff facially challenges the New Jersey Harassment Statute,

N.J. Stat. Ann. § 2C:33-4(a) & (c), as unconstitutionally overbroad and vague in violation of the

First Amendment (Count I). (TAC ¶¶ 55-122.) Plaintiff also alleges that the PDVA, N.J. Stat.

Ann. §§ 2C:25-17 to -35, is unconstitutional in violation of his Second, Fourth, and Fourteenth

Amendment rights (Counts II-III, VII). (TAC ¶¶ 123-67, 222-36.) Plaintiff further claims that the

Township Defendants and Defendant Mediatrice engaged in malicious use of process (Count IV).

(Id. ¶¶ 21-22.) Plaintiff also alleges that the State and Township Defendants violated his equal

protection rights (Count V). (Id. ¶¶ 179-94.) Lastly, Plaintiff claims that the June 12, 2020 Gag

Order is an unconstitutional prior restraint on speech issued without due notice in violation of his

First and Fourteenth Amendment rights. (Count VI). (Id. ¶¶ 179-94.)

The State and Township Defendants filed motions to dismiss Plaintiff’s TAC on September

26, 2022. (ECF 115, 116). Defendant Mediatrice filed a motion to dismiss Plaintiff’s TAC on

December 14, 2022. (ECF 135). The Court administratively denied Defendants’ motions without

prejudice on December 20, 2023, pursuant to a stay pending the United States Supreme Court’s

ruling in United States v. Rahimi, 602 U.S. 680 (2024). (ECF 161.) On September 16, 2025, the

Court lifted the stay and ordered the parties to submit a proposed briefing schedule for Defendants’

renewed motions to dismiss. (ECF 182.) The State and Township Defendants filed a proposed

schedule with Plaintiff’s consent, but Mediatrice did not respond to co-Defendants’ request for

consent. (ECF 183.) On November 14, 2025, the State Defendants renewed their motion to

dismiss Plaintiff’s TAC for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (See generally

State Mot.) On November 17, 2025, the Township Defendants also renewed their motion to

dismiss Plaintiff’s TAC for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (See generally

Town Mot.) On December 1, 2025, Plaintiff opposed Defendants’ motions. (See generally Opp.

to State; Opp. to City.) On December 15, 2025, the State and Township Defendants filed their

replies. (See generally State Reply; Town Reply.) Defendant Mediatrice did not file a renewed

motion to dismiss. On December 1, 2025, Plaintiff filed an opposition to Mediatrice’s previous

motion to dismiss. (ECF 190, “Opposition to Mediatrice” or “Opp. to Mediatrice.”)

II. LEGAL STANDARD

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Plaintiff must allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). The plausibility standard is satisfied when the Plaintiff alleges sufficient

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

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the facts alleged need

not be probable, they must “show more than a sheer possibility that a defendant has acted

unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation

marks and citations omitted).

When a Plaintiff files a complaint pro se, their “pleadings must be liberally construed.”

Alexander v. Gennarini, 144 F. App’x 924, 2005 WL 1805621, at *2 (3d Cir. 2005). The

arguments of pro se litigants “must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). Courts must accept all factual allegations in the complaint as true and draw all

reasonable inferences in favor of the Plaintiff. Phillips v. Ctny. of Allegheny, 515 F.3d 224, 231

(3d Cir. 2008). However, when a Plaintiff alleges legal conclusions disguised as factual assertions,

or factual assertions that are otherwise unreasonable, the court is under no obligation to accept

such allegations as true. Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007) (holding a court

is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions

disguised as factual allegations”). If, after reviewing the pleadings, the court determines that the

Plaintiff failed to establish a claim and construed all reasonable facts and inferences in favor of the

Plaintiff, the court may dismiss the complaint for failure to state a claim upon which relief can be

granted. Stringer v. Bureau of Prisons, Federal Agency, 145 F. App’x 751, 2005 WL 2009019, at

*1 (3d Cir. 2005).

III. ANALYSIS

A. New Jersey Harassment Statute (Count I)

The New Jersey Harassment Statute is facially constitutional and constitutional as applied

to Plaintiff. A person violates the New Jersey Harassment Statute if:

with the purpose to harass another, [he] (a) [m]akes, or causes to be made, a

communication or communications anonymously or at extremely inconvenient

hours, or in offensively coarse language, or any other manner likely to cause

annoyance or alarm, [or] (c) [e]ngages in any other course of alarming conduct or

of repeatedly committed acts with purpose to alarm or seriously annoy such other

person.

N.J.S.A. § 2C:33-4(a) and (c). Plaintiff alleges that subsections (a) and (c) of the New Jersey

Harassment Statute are facially unconstitutional, “with a chilling effect on free speech,” as these

provisions are overbroad and vague. (TAC ¶¶ 55-122.) Defendants argue that the New Jersey

Supreme Court has already addressed facial challenges to the statute and found that it is

constitutional. (State Mot. at 8-11.) Plaintiff concedes the point but claims that the statute remains

overbroad and vague. (Opp. to State at 12-14.)

Laws that infringe on speech must give “fair notice” of where the line is set between what

is permissible and proscribed and must be drawn “with appropriate definiteness.” Winters v. New

York, 333 U.S. 507, 510, 515 (1948). The New Jersey Harassment Statute does so. The New

Jersey Supreme Court held that subsections (a) and (c) of the statute are facially constitutional.

See State v. Mortimer, 135 N.J. 517, 536 (1994) (holding that subsection (a) is facially

constitutional); State v. Burkert, 231 N.J. 257, 284 (2017) (same for subsection (c)). The Burkert

court narrowly construed subsection (c) to apply only to “repeated communications directed at a

person that reasonably put that person in fear for [her] safety or security or that intolerably

interfered with that person’s reasonable expectation of privacy.” 231 N.J. at 264. Because “the

New Jersey Supreme Court [is] the final interpreter of New Jersey law,” MHA, LLC v. Amerigroup

Corp., No. 18-16042, 2021 WL 1976787, at *6 (D.N.J. May 17, 2021), Plaintiff’s facial challenge

against the New Jersey Harassment Statute fails.

Plaintiff also argues that Judge Dowd and Judge Spencer unlawfully applied subsections

(a) and (c) of the New Jersey Harassment Statute to him. (TAC ¶¶ 55-122.) Defendants point to

judicial immunity and argue that Judge Dowd’s and Judge Spencer’s actions are immune from suit

because they acted in their judicial capacity. (State Mot. at 5-8; Town Mot. at 12-16.) Plaintiff

responds by asserting that judicial immunity applies only to damages relief, not injunctive relief,

and that Judge Dowd and Judge Spencer impermissibly engaged in judicial policymaking. (Opp.

to State at 4-12; Opp to Town at 13-21.)

“A judicial officer in the performance of his duties has absolute immunity from suit and

will not be liable for his judicial acts.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006); see

also Ball v. Butts, 445 F. App’x 457, 458 (3d Cir. 2011) (dismissing a request for injunctive relief

for failure to state a claim “because such relief is not available against ‘a judicial officer for an act

. . . taken in such officer’s judicial capacity’” (quoting 42 U.S.C. § 1983)). “Like other forms of

official immunity, judicial immunity is immunity from suit, not just from ultimate assessment of

damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity is overcome only if (1) the

challenged actions were not taken in the judge’s judicial capacity or (2) the challenged actions,

“though judicial in nature, were taken in complete absence of all jurisdiction.” Id. at 11-12.

Neither exception applies here. Judge Dowd and Judge Spencer acted within their judicial capacity

and within their jurisdiction of the New Jersey Family Court by applying constitutional state law,

conducting TRO and FRO hearings, and making reasoned judgments against Plaintiff. See Gallas

v. Supreme Court of Pa., 211 F.3d 760, 771 (3d Cir. 2000) (“[A] judge does not act in the clear

absence of all jurisdiction when the judge enters an order at least colorably within the jurisdiction

of her court.”); see also Allen v. Debello, 861 F.3d 433, 442 (3d Cir. 2017) (finding that family-

court judges were not proper defendants in Section 1983 action when they act as “neutral arbiters

of the New Jersey custody statute and its policies”). In fact, this Court has already found that:

Judge Dowd and Judge Spencer articulated numerous instances in which

Mutarambirwa “constantly” made “threaten[ing]” and “fright[ening]”

communications, as well as engaged in repeated acts of “alarming” conduct towards

Mediatrice, including calling her a “bitch” and a “whore” and physically restraining

her movements. See also ECF No. 52 at 4–8. Such findings are clearly within the

realm of proscribed conduct under N.J.S.A.§ 2C:33-4(a) and (c). Id. (proscribing

“annoy[ing]” communications and repeated instances of “alarming” conduct).

(ECF 53 at 5.)

Plaintiff fails to state a valid claim against the State and Township Defendants for allegedly

infringing on his First Amendment rights. The Court has considered whether leave to amend

should be granted. See Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 545 (3d Cir.

2012) (“Leave to amend should be freely given when justice so requires, including for a curative

amendment unless such an amendment would be inequitable or futile.”) Further amendment of

Plaintiff’s deficient TAC would be futile as to the unconstitutionality claim and the claims barred

by judicial immunity. Accordingly, Count I of Plaintiff’s TAC is DISMISSED with prejudice.

B. New Jersey Prevention of Domestic Violence Act (Counts II-III, VII)

Like the New Jersey Harassment Statute, the PDVA is facially constitutional and

constitutional as applied to Plaintiff. Under the PDVA, after a finding that there is a danger of

domestic violence, a judge may order emergency relief that includes:

forbidding the defendant from returning to the scene of the domestic violence,

forbidding the defendant from possessing any firearm or other weapon enumerated

in subsection r. of N.J.S.2C:39-1, ordering the search for and seizure of any firearm

or other weapon at any location where the judge has reasonable cause to believe the

weapon is located and the seizure of any firearms purchaser identification card or

permit to purchase a handgun issued to the defendant and any other appropriate

relief.

N.J.S.A. § 2C:25-28(j). In the TAC, Counts II, III, and VII arise under the PDVA. Plaintiff claims

that the State and Township Defendants’ application of the PDVA violated his Second, Fourth,

and Fourteenth Amendment rights. (See generally TAC.)

1. Second Amendment (Count II)

Plaintiff alleges that the PDVA is unconstitutional and that the State and Township

Defendants unconstitutionally stripped his right to possess a firearm after a finding of a “minor

non-violent offense.” (TAC ¶¶ 123-52.) Defendants point to the Supreme Court’s decision in

United States v. Rahimi, 602 U.S. 680 (2024), where the Court held that “the Second Amendment

permits the disarmament of individuals who pose a credible threat to the physical safety of others.”

(State Mot. at 11-15 (quoting Rahimi, 602 U.S. at 693).) There, the Supreme Court rejected a

challenge to 18 U.S.C. § 922(g)(8), which disarms individuals subject to domestic violence

restraining orders when there is a finding that they pose a threat of danger. Rahimi, 602 U.S. at

693. Plaintiff argues that the statute at issue in Rahimi differs from the PDVA and thus the PDVA

is unconstitutional under the history and tradition test outlined in N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022). (Opp. to State at 15-22.) The Court agrees with Defendants that the

PDVA is constitutional as applied to Plaintiff under Rahimi’s application of the Bruen test.5

Rahimi explains that the central test for evaluating challenges to statutes that infringe on

the Second Amendment is “whether the challenged regulation is consistent with the principles that

underpin our regulatory tradition.” 602 U.S. at 692 (citing Bruen, 597 U.S. at 26-31). Indeed, the

test does not require a “historical twin,” and a challenged statute that “does not precisely match its

historical precursors, . . . ‘may be analogous enough to pass constitutional muster.’” Id. at 691-92

(quoting Bruen, 597 U.S. at 30). Further, the Rahimi Court had “no trouble concluding that

§ 922(g)(8) . . . fits comfortably within th[e] tradition” of protecting potential victims from

“individuals who pose a credible threat to the physical safety of others.” Id. at 690-93. So too

here. The PDVA empowers a judge to issue TROs and FROs that restrict firearm ownership for

individuals who pose a danger of domestic violence. N.J.S.A. §§ 2C:25-28(f) to (j). Therefore,

the PDVA permissibly regulates firearms in accordance with the tradition of protecting potential

victims from “individuals who pose a credible threat to the physical safety of others.” See Rahimi,

602 U.S. at 690.

The New Jersey Family Court issued a FRO against Plaintiff that restricted his access to a

firearm after “considering documentary and testimonial evidence from both sides, [and]

conclud[ing] that Mutarambirwa committed numerous instances of abusive behavior against

Mediatrice and their children, and [finding] that Mutarambirwa was inclined to commit future acts

5 To state a valid facial challenge under the Second Amendment, a plaintiff “must demonstrate that

the challenged law is invalid as to every set of circumstances to which applied.” Piszczatoski v.

Filko, 840 F. Supp. 2d 813, 820 (D.N.J. 2012) (emphasis added). Having found that the PDVA is

constitutional as applied to Plaintiff, the Court also finds that the facial challenge to the statute

fails. See United States v. Mitchell, 652 F.3d 387, 415 (3d Cir. 2011) (“[Plaintiff’s] facial challenge

to the statute fails. Because the statute is constitutional as applied to [plaintiff], he has not shown

that there is no set of circumstances under which the statute may be applied constitutionally.”).

of violence.” (ECF 53, Op. at 2 (citing ECF 52-1 at 4-8)); see also N.J.S.A. § 2C:25-19(a)(13).

“Plaintiff’s prior conduct places him squarely within the class of individuals prohibited from

firearm ownership” under the operative history and tradition test because Plaintiff “pose[s] a

credible threat to the physical safety of others.” (ECF 182, Op. at 6); Rahimi, 602 U.S. at 690.

Moreover, Plaintiff’s allegation that he did not physically harm Mediatrice or commit a violent

offence does not change the analysis. The Third Circuit explains that an individual may still “pose

a physical danger to others” even if his predicate conduct of harassment “did not plausibly involve

the use of force or physical injury.” See Pitsilides v. Barr, 128 F.4th 203, 211 (3d Cir. 2025). The

New Jersey Family Court found Plaintiff to be a danger to Mediatrice as his behavior “was

designed in such a fashion to annoy [Mediatrice] and force her back into the marital bedroom.”

(See ECF 52-1 at 16.)

Plaintiff fails to state a valid claim against the State and Township Defendants for allegedly

infringing on his Second Amendment right. Further amendment of Plaintiff’s deficient TAC

would be futile under controlling law as to the claims that the PDVA is facially unconstitutional

and unconstitutional as applied to Plaintiff. Accordingly, Count II of Plaintiff’s TAC is

DISMISSED with prejudice.

2. Fourteenth Amendment (Count III)

Plaintiff alleges that the State and Township Defendants unconstitutionally applied the

PDVA to strip him of custody of his two children. (TAC ¶¶ 153-67.) “[T]he Due Process Clause

of the Fourteenth Amendment protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66

(2000). However, parental rights are not absolute. See Croft v. Westmoreland Ctny. Children &

Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). “Rather, [parental interests are] balanced against

the government’s compelling interest in the protection of minor children, particularly in

circumstances where the protection is considered necessary as against the parents themselves.”

R.B. v. Westmoreland Ctny., 526 F. App’x 181, 185 (3d Cir. 2013). To plead a sufficient claim

under the Due Process Clause, a plaintiff must allege that the government “has abused its power

in an arbitrary manner that ‘shocks the conscience.’” Mammaro v. N.J. Div. of Child Prot. &

Permanency, 814 F.3d 164, 169 (3d Cir. 2016).

The New Jersey Family Court temporarily restricted Plaintiff’s custody of his children after

finding that Plaintiff “shouted vulgar and threatening language directed at his children, accused

his children of lewd sexual behavior, and verbally and physically abused the mother of his children

while the children were present.” (ECF 53, Op. at 8-9.) Such reasoned judgment, performed in

the context of Judge Dowd’s and Judge Spencer’s judicial capacity, does not plausibly rise to the

level of abuse of power nor does it “shock the conscience.” See Mammaro, 814 F.3d at 169.

Plaintiff’s claim does not overcome Judge Dowd’s and Judge Spencer’s judicial immunity. See

Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

Plaintiff fails to state a valid claim against the State and Township Defendants for allegedly

encumbering his parental rights under the Fourteenth Amendment. Further amendment of

Plaintiff’s deficient TAC would be futile as the claims are barred by judicial immunity.

Accordingly, Count III of Plaintiff’s TAC is DISMISSED with prejudice.

3. Fourth Amendment (Count VII)

Plaintiff alleges that the State and Township Defendants permitted a judge to order a search

of Plaintiff’s biometric gun safe based on less than probable cause in violation of the Fourth

Amendment. (TAC ¶¶ 222-36.) About a year after the issuance of the FRO that forbade Plaintiff

from owning a firearm, the New Jersey Family Court ordered a search of Plaintiff’s biometric gun

safe purchased before issuance of the TRO and FRO and left at his former residence. (Id.)

Mediatrice found the safe in the home that she shares with their two children and was concerned

that it may contain a firearm. (Id.) Under the PDVA, a judge may order a “search for and seizure

of any firearm or other weapon at any location where the judge has reasonable cause to believe the

weapon is located . . . .” N.J.S.A. § 2C:25-28(j).

The New Jersey Supreme Court has narrowly construed the PDVA to conform to the

Fourth Amendment. State v. Hemenway, 239 N.J. 111, 117 (2019). The Hemenway Court

established a three-prong probable cause test that a court must satisfy before issuing a warrant to

search for and seize firearms under the PDVA.6 Id. “Transposed into the context of a domestic

violence search warrant for weapons, probable cause requires that the issuing court only have a

well-grounded suspicion.” Id. First, this Court will not disturb the New Jersey Family Court’s

finding that a search of Plaintiff’s gun safe was warranted. Under the Rooker-Feldman doctrine,

“federal district courts lack subject matter jurisdiction to evaluate constitutional claims that are

‘inextricably intertwined with the state court’s [decision] in a judicial proceeding.’” Blake v.

Papadakos, 953 F.2d 68, 71 (3d Cir. 1990) (quoting District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 483 n.16 (1983)). Assuming arguendo that the Rooker-Feldman doctrine

is inapposite, as Plaintiff argues, see Opp. to Town at 30-32, the three-prong probable cause test

is met.7

6 The issuing court must find “(i) probable cause to believe an act of domestic violence has been

committed by the defendant; (ii) probable cause to believe a search for, and seizure of, weapons is

‘necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought;’

and (iii) probable cause to believe that the weapons are located in the place to be searched.” Id.

(quoting N.J.S.A. § 2C:25-28(f)).

7 There was at least a “well-grounded suspicion” that (i) Plaintiff committed domestic violence as

the FRO was issued and upheld; (ii) a search for a firearm was necessary to protect Mediatrice and

their children; and (iii) a firearm owned by Plaintiff would be located in a biometric gun safe

Plaintiff fails to state a valid claim challenging the State and Township Defendants’

conduct under the Fourth Amendment. Further amendment of Plaintiff’s deficient TAC would be

futile under controlling law as to Count VII. Accordingly, Count VII of Plaintiff’s TAC is

DISMISSED with prejudice.

C. Malicious Use of Process (Count IV)

Plaintiff alleges that the Township Defendants and Defendant Mediatrice engaged in

malicious use and abuse of process as to Mediatrice’s allegation of assault by Plaintiff at the FRO

hearing. (See TAC ¶¶ 168-78.) To state a valid claim under malicious use of process, a plaintiff

must show that

(1) a [civil] action was instituted by this defendant against this plaintiff; (2) the

action was motivated by malice; (3) there was an absence of probable cause . . . ;

and (4) the action was terminated favorably to plaintiff . . . ; [and (5)] the plaintiff

has suffered a special grievance caused by the institution of the underlying civil

claim.

LeBiondo v. Schwartz, 199 N.J. 62, 89-90 (2009). Alternatively, Plaintiff asserts a malicious abuse

of process claim under 42 U.S.C. § 1983. To state a valid claim under § 1983, a plaintiff “must

assert that the defendants have acted under color of state law to deprive [him] of a personal

constitutional right.” Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 325 (D.N.J. 1978).

In § 1983 actions, “federal courts must ascertain the underlying cause of action under state law.”

Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977). Here, the underlying cause of action is

the state tort of malicious abuse of process, which requires two elements: “(1) the defendant has

set legal process in motion for an improper ulterior purpose, and (2) the defendant has committed

purchased by Plaintiff a year before the FRO forbade him from owning one. See Hemenway, 239

N.J. at 117.

a willful act in the use of process which perverts the regular conduct of the proceeding to

accomplish the improper purpose.” Voytko, 445 F. Supp. at 325.

Plaintiff is unable to meet the first element under either cause of action as to the Township

Defendants because Defendant Mediatrice, not the Township Defendants, initiated the TRO civil

action against Plaintiff. (TAC ¶ 17.) Because Plaintiff fails to state a valid claim, and further

amending the deficient TAC would be futile, Count IV is DISMISSED with prejudice as to the

Township Defendants.

Malicious use of process is the only applicable cause of action as to Defendant Mediatrice

because she is private entity. Applying the standard set forth in LeBiondo, Plaintiff is unable to

plausibly meet the second element. “Malice . . . is defined as the ‘intentional doing of a wrongful

act without just cause or excuse.’” LeBiondo, 199 N.J. at 93-94. In April 2020, Mediatrice

initiated a TRO proceeding against Plaintiff because he

YELLED AT HER AND KEPT HER FROM SLEEPING BY MAKING LOUD

NOISES AND DEFLATING THE AIR MATTRESS THAT SHE HAS BEEN

SLEEPING ON. [MEDIATRICE] STATES THAT MR. MUTARAMBIRWA

CONSTANTLY YELLS AT HER AND CALLS HER “STUPID, LIAR, BITCH.”

(Id. (emphasis in original).) Mediatrice amended her report to allege Plaintiff assaulted her in

addition to the alleged harassment. (Id. ¶ 19.) According to Mediatrice, Plaintiff pulled a mattress

while she was on it “causing her to fall and feel pain.” (ECF 52-1 at 6.) Plaintiff admitted that he

moved the mattress but denied Mediatrice was on it. (Id.) After a two-day trial, the New Jersey

Family Court held that Mediatrice “had not proven assault given the parties’ conflicting

testimony.” (Id. at 8 (emphasis added).) This Court must liberally construe pro se pleadings, but

it need not credit “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132

F.3d 902, 906 (3d Cir. 1997). Plaintiff claims that Mediatrice amending her report to include an

assault allegation after consulting with counsel is evidence of malice. (TAC ¶ 174.) This is a

baldly asserted legal conclusion, not plausible factual evidence of intentional wrongdoing.

Plaintiff fails to allege facts that plausibly assert a malicious use of process claim.

Therefore, Plaintiff fails to state a valid claim in Count IV as to Defendant Mediatrice. Plaintiff

argues that any dismissal of Count IV should be without prejudice as he has “many additional facts

showing malice.” (Opp. to Mediatrice at 11.) Given that Plaintiff has amended his complaint

three times and has not included his alleged “many additional facts,” this Court holds that it would

be futile to permit further amendment of his deficient complaint against pro se Defendant

Mediatrice. See Free Speech Coal., 677 F.3d at 545. Accordingly, Count IV is DISMISSED with

prejudice as to Defendant Mediatrice.

D. Equal Protection (Count V)

Plaintiff alleges that the State and Township Defendants have a custom and practice of

granting restraining orders to women while denying them to men who allege similar circumstances

in violation of the Equal Protection Clause. (TAC ¶¶ 179-94.)

1. State Defendants

To state a valid Equal Protection Clause claim, a plaintiff must demonstrate that “(1) [he],

compared with others similarly situated, was selectively treated, and (2) the selective treatment

was motivated by an intention to discriminate on the basis of impermissible considerations.” Rose

v. City of Allentown, 211 F. App’x 133, 139 (3d Cir. 2007). “Discriminatory intent ‘implies that

the decision-maker . . . selected or reaffirmed a particular course of action at least in part because

of, not merely in spite of, its adverse effects upon an identifiable group.’” Antonelli v. New Jersey,

419 F.3d 267, 274 (3d Cir. 2005) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279

(1979)).

First, Plaintiff fails to plead any facts that show the State Defendants treated him differently

under the PDVA. Andrews, 895 F.2d at 1478. Plaintiff baldly asserts that “New Jersey . . . [has]

a custom and practice of granting Domestic Violence restraining orders to women while denying

them to men based on equally serious or even more serious allegations.” (TAC ¶ 180.) But it

appears that Plaintiff did not attempt to apply for a TRO in the New Jersey Family Court. (See id.

¶¶ 179-94.) Second, Plaintiff fails to plead any facts that show that the State Defendants are

motivated by discriminatory intent. Therefore, Plaintiff fails to state a valid Equal Protection

Clause claim. Again, the Court must liberally construe pro se pleadings, but it need not credit

“bald assertions” or “legal conclusions.” Morse, 132 F.3d at 906. Because further amendment of

Plaintiff’s deficient TAC would be futile under controlling law, Count V is DISMISSED with

prejudice as to the State Defendants.

2. Township Defendants

A municipality may be held liable under § 1983 only if its official policy or custom causes

a constitutional injury. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (“When a

suit against a municipality is based on § 1983, the municipality can only be liable when the alleged

constitutional transgression implements or executes a policy, regulation or decision officially

adopted by the governing body or informally adopted by custom.” (citing Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 658 (1978))). In other words, the plaintiff must show that

the municipality, through one of its policymakers, affirmatively proclaimed the policy or

acquiesced in the widespread custom that caused the violation. Watson v. Abington Twp., 478 F.3d

144, 155-56 (3d Cir. 2007).

Plaintiff baldly asserts that “West Orange has an established policy of not taking male

complaints of harassment seriously.” (TAC ¶ 188.) Plaintiff alleges that the West Orange Police

Department refused to take Plaintiff’s report of harassment against him by Mediatrice on May 22,

2020, a week after Judge Spencer issued the FRO against Plaintiff for harassing Mediatrice. (Id.

¶¶ 21-23, 179-94.) Plaintiff’s single assertion does not plausibly establish that the Township

acquiesced to a widespread custom of disparate treatment. Therefore, Plaintiff fails to state a valid

§ 1983 claim under Monell. Because further amendment of Plaintiff’s deficient TAC would be

futile under controlling law, Count V is DISMISSED with prejudice as to the Township

Defendants.

E. Gag Order (Count VI)

Plaintiff alleges that Judge Spencer’s June 12, 2020 Gag Order prohibiting Plaintiff from

making disparaging remarks about Mediatrice in front of their children is unconstitutional. (TAC

¶¶ 195-221.) The Younger doctrine states that federal courts should not entertain requests to enjoin

state criminal prosecutions, “particularly . . . when the moving party has an adequate remedy” in

state court. 401 U.S. 37, 43 (1971). “[T]he Supreme Court has . . . extended Younger’s application

to bar federal interference with certain state civil and administrative proceedings.” ACRA Turf

Club, LLC v. Zanzuccki, 748 F.3d 127, 132 (3d Cir. 2014). The Court held that “civil proceedings

involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their

judicial functions” triggers Younger abstention. Sprint Communs., Inc. v. Jacobs, 571 U.S. 69, 78

(2013). After a court finds that a proceeding triggers Younger, it should consider “whether ‘(1)

there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate

important state interests; and (3) the state proceedings afford an adequate opportunity to raise

federal claims.’” Malhan v. Sec’y U.S. Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019) (quoting

Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982)).

Here, Judge Spencer’s Gag Order is an order in furtherance of the New Jersey Family

Court’s ability to perform its judication function. See Argen v. Katz, No. 18-963, 2021 U.S. Dist.

LEXIS 127121, at *6 (D.N.J. July 8, 2021) (“[R]uling on Plaintiff[’s] challenge to the Gag Order

would improperly interfere with the state court’s ability to limit the conduct of a litigant during

proceedings, which is necessary to further that ‘court’s ability to perform its judicial functions.’”

(quoting Silver v. Court of Common Pleas, 802 F. App’x 55, 58 (3d Cir. 2020))). A Gag Order

“seeks to preserve the state court’s power to further one of its uniquely judicial functions –

promoting and protecting the best interests of a child whose custody had been previously

adjudicated by the court.” Silver, 802 F. App’x at 58. Therefore, Younger is applicable, and the

Court considers the three Middlesex factors in deciding whether to abstain. All three factors weigh

in favor of abstention: (1) the judicial proceedings governing Plaintiff’s custody are ongoing; (2)

family-court proceedings implicate a traditional area of state concern; and (3) Plaintiff may raise

federal legal issues before the New Jersey Family Court if he seeks to revise the FRO or custody

order.

Under the dictates of Younger and its progeny, this Court abstains from reaching the merits

of Plaintiff’s claims in Count VI.8 Because further amendment of Plaintiff’s deficient TAC would

be futile under controlling law, Count VI is DISMISSED with prejudice.

IV. CONCLUSION

For the reasons stated above, the State and Township Defendants’ Motions to Dismiss

Plaintiff’s Third Amended Complaint are GRANTED. Counts I-VII against Defendants are

DISMISSED with prejudice. An appropriate order follows.

8 State Defendants argue that the Gag Order is constitutional as it comports with the First

Amendment. (State Mot. at 30-34.) The Court need not reach the merits of whether the Gag Order

comports with the First Amendment and refrains from doing so.

/s/ Jamel K. Semper .

HON. JAMEL K. SEMPER

United States District Judge

Orig: Clerk

cc: Jose R. Almonte, U.S.M.J.

Parties