Sherri Boseski v. North Arlington Municipality

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4534

___________

SHERRI BOSESKI,

Appellant

v.

NORTH ARLINGTON MUNICIPALITY; BERGEN REGIONAL MEDICAL

CENTER; UNITED STATES DEPARTMENT OF DEFENSE

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-13-cv-02652)

District Judge: Honorable William J. Martini

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 3, 2015

Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

(Opinion filed: August 7, 2015)

___________

OPINION*

___________

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Appellant Sherri Boseski, proceeding pro se, brought an array of claims against

the Department of Defense (“DOD”), North Arlington Municipality (“North Arlington”),

and the Bergen County Medical Center (“Bergen Medical”), based on incidents spanning

at least a decade, averring a wide-ranging conspiracy among the defendants to violate her

civil, statutory, contractual and common-law rights. She alleges that the defendants have

committed a “continuous tort,” comprised of incidents of false arrest and assault by North

Arlington Police officers in 2003, 2004, and 2006; her involuntary commitment to

Bergen Medical Center in 2006; bias and misconduct by New Jersey state court judges in

adjudicating her prior criminal and civil cases; a conspiracy among the defendants and

the New Jersey courts to conscript her into military service against her will; several

incidents of rape by military officers during her recruitment into and service in the United

States Army; failure by the Army’s Criminal Investigation Command (“CID”) and the

North Arlington Police to conduct an adequate investigation into her sexual assault

allegations, during and after her military service; and medical malpractice by Department

of Veterans Affairs (“VA”) doctors who treated her after her discharge from the military.

Boseski asserts various causes of action, including “conspiracy to commit fraud,

restriction of trade – 15 U.S.C.A. [§] 1, breach of contract by the military, negligence,

assault, legal malpractice, false arrest and imprisonment, defamation, [libel],” conspiracy

to deny her access to the courts, violations of the Thirteenth Amendment’s prohibition

against involuntary servitude, and other unspecified violations of her civil rights under 42

2

U.S.C. §§ 1981, 1983, and 1985. She seeks ten million dollars in damages for lost past

and future earnings, and medical and legal expenses.

On December 13, 2013, the District Court dismissed the complaint against North

Arlington and Bergen Medical under Federal Rule of Civil Procedure 12(b)(6), as barred

by the applicable statute of limitations and by the doctrine of res judicata.1 On October

21, 2014, the District Court dismissed the complaint against the DOD under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the basis of sovereign immunity and

other jurisdictional grounds. Boseski timely appealed from both orders.2

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s dismissal of the claims under Rules 12(b)(1) and 12(b)(6), and

we employ the same standard in reviewing the complaint as did the District Court. See

Free Speech Coal., Inc. v. Attorney Gen., 677 F.3d 519, 529–30 (3d Cir. 2012). We may

1

In this circuit, a defendant may assert a statute of limitations defense in a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) where it is apparent on the face of

the complaint that the claims are time-barred. See Robinson v. Johnson, 313 F.3d 128,

135 & n.3 (3d Cir. 2002).

2

The District Court expressly dismissed the claims against the DOD with prejudice, but

did not state whether Boseski’s claims against North Arlington and Bergen Medical were

dismissed with prejudice. In any event, Boseski did not file an amended complaint

before appealing to this Court. Because she has elected to stand on her original

complaint, we may exercise jurisdiction over this appeal. See Frederico v. Home Depot,

507 F.3d 188, 192 (3d Cir. 2007). Technically, Boseski filed her notice of appeal only as

to the District Court’s order dismissing the DOD, but her brief makes clear that she also

challenges the order dismissing North Arlington and Bergen Medical.

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affirm the District Court’s judgment on any grounds supported by the record. Hughes v.

Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

We agree with the District Court that most of Boseski’s claims against North

Arlington and all of her claims against Bergen Medical are barred by the applicable

statute of limitations. Boseski alleges that she was assaulted and falsely arrested by

North Arlington Police on three occasions—November 5, 2003; July 3, 2004; and

September 13, 2006. She also alleges that she was involuntarily committed to Bergen

Medical for five or six days immediately following her September 13, 2006 arrest. The

statute of limitations for constitutional claims under 42 U.S.C. § 1983 is the same as the

statute of limitations for personal injury claims in the state in which the cause of action

arose. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). In New Jersey,

the statute of limitations for personal injury claims is two years. See N.J. Stat. Ann. §

2A:14-2.

However, the “[t]he period of service, in time of war and 6 months thereafter, of

any person, in active service in any of the armed forces of the United States, . . . shall not

be included in computing any period limited . . . by any law for the bringing of any action

by or against any such person . . . whether such cause of action shall have accrued prior

to, or during, the period of such service or during such 6 months thereafter.” N.J. Stat.

Ann. § 2A:14-26. According to a VA document attached to her complaint, Boseski

served in the Army from September 19, 2006, to October 15, 2009.3 Even assuming that

3

In its opinion dismissing the claims against North Arlington and Bergen Medical, the

4

this entire period of time meets the definition set forth in § 2A:14-26 for service “in time

of war,” the statute of limitations for all three incidents expired before Boseski filed this

lawsuit. The two-year limitations period for the November 2003 and July 2004 incidents

expired before Boseski entered the Army in September 2006. As to the September 13,

2006 incident, the limitations period was tolled for the period of Boseski’s military

service and six months thereafter, until April 2010, and expired two years later in April

2012, a year before Boseski’s complaint was filed in federal court.

Boseski’s unsupported assertions that the defendants engaged in a “continuous

tort” and conspiracy are insufficient to justify additional tolling. Boseski has pleaded no

facts to support her conclusory allegation that the DOD, Bergen Medical, and North

Arlington are engaged in a conspiracy, or the type of continuous tort that might

conceivably toll the statute of limitations for these early incidents.4

District Court stated that Boseski began her military service on September 24, 2006. This

minor discrepancy does not affect our analysis.

4

Boseski’s argument that a six-year statute of limitations applies to “legal malpractice”

claims is inapposite, because her allegations do not state a claim for legal malpractice.

Although she alleges numerous examples of behavior she believes demonstrate judicial

bias by New Jersey state court judges, or failure to abide by certain professional codes of

conduct, these do not state a claim for malpractice. Moreover, “[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). It is likewise

irrelevant that a longer statute of limitations may apply to fraud claims, as Boseski’s

claims of fraud are wholly conclusory.

Despite her contention otherwise, the fact that Boseski did not receive an official

diagnosis of Post-Traumatic Stress Disorder (“PTSD”) until October 2010 does not affect

our analysis of the claims against North Arlington or Bergen Medical, because she does

not allege that her PTSD was the result of any action by those defendants. Even had she

5

The District Court also correctly held that Boseski was barred from pursing claims

against North Arlington related to the 2003 and 2004 incidents, which had been the

subject of an earlier civil suit in the Superior Court of New Jersey, Bergen County. See

Boseski v. North Arlington Municipality, No. BER-L-7886-12 (N.J. Super. Ct., filed Oct.

9, 2012). The doctrine of res judicata, or claim preclusion, precludes a party from

relitigating the same claims against the same parties after those claims have already been

decided on the merits. The doctrine applies when a defendant demonstrates that “there

has been (1) a final judgment on the merits in a prior suit involving (2) the same parties

or their privies and (3) a subsequent suit based on the same causes of action.” United

States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984). On February 22, 2013,

the Superior Court dismissed Boseski’s claims with prejudice, as barred by the statute of

limitations. This dismissal was unquestionably a final adjudication on the merits in a suit

involving the same parties, involving the same underlying incidents. See Athlone Indus.,

746 F.2d at 984 (explaining that, for res judicata purposes, suits involve the same cause

of action where there is “an essential similarity of the underlying events giving rise to the

various legal claims”).

The only remaining allegations against North Arlington are that (1) North

Arlington police failed to adequately investigate Boseski’s 2012 complaint regarding her

so alleged, her cause of action would have accrued at the time of each arrest. See Rose v.

Bartle, 871 F.2d 331, 350 (3d Cir. 1989) (noting that a § 1983 claim for false arrest

accrues on the date of the arrest). Cf. Zeleznik v. United States, 770 F.2d 20, 22-23 (3d

Cir. 1985) (noting that, for tort claims under the FTCA, the cause of action generally

accrues when the injured party knows of his injury and its cause).

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2005 rape; and (2) in March 2013, a municipal snowplow dumped snow on Boseski’s

freshly shoveled sidewalk (an action which she asserts is part of a campaign of

harassment by the North Arlington police). Neither of these allegations is sufficient to

state a claim against North Arlington. First, Boseski has no cognizable claim against a

government entity for its failure to investigate or bring criminal charges against another

individual. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen

lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).

See also Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007) (holding that “[t]here is

no statutory or common law right, much less a constitutional right, to an investigation.”).

Second, to the extent that the complaint purports to allege police harassment or the failure

of certain police officers to investigate her complaints, Boseski has not alleged that her

injuries were the result of a policy or custom, so as to implicate municipal liability under

§ 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[A] local

government may not be sued under § 1983 for an injury inflicted solely by its employees

or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts

the injury that the government as an entity is responsible under § 1983.”). Cf. Groman v.

Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (“vague assertions about the police

department’s failure to investigate” alleged wrongdoings did not establish municipal

liability). Accordingly, we will affirm the District Court’s dismissal of the claims against

Bergen Medical and North Arlington.5

5

Boseski has not stated a claim against any defendant under 42 U.S.C. § 1981, because

7

The District Court also correctly dismissed the claims against the DOD, on the

basis of sovereign immunity generally, and, to the extent that the United States may have

waived its immunity under the Federal Tort Claims Act (“FTCA”), for failure to pursue

the prerequisite administrative remedies. Sovereign immunity protects the federal

government and its agencies from suit “except insofar as it has waived that immunity.”

United States v. Bein, 214 F.3d 408, 413 (3d Cir. 2000) (citing Lane v. Pena, 518 U.S.

187, 192 (1996)). Any such waiver “must be expressed unequivocally in statutory text

and will not be implied.” Id. The FTCA acts as a limited waiver of sovereign immunity,

permitting private suits against the federal government for certain tort claims for money

damages. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456–57 (3d Cir. 2010).

However, “[n]o claim can be brought under the FTCA unless the plaintiff first

presents the claim to the appropriate federal agency and the agency renders a final

decision on the claim.” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015); 28 U.S.C.

§ 2675(a) (“An action shall not be instituted upon a claim against the United States for

money damages for injury . . . caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or employment,

unless the claimant shall have first presented the claim to the appropriate Federal agency

she does not allege that any defendant’s actions were motivated by racial discrimination.

See Brown v. Phillip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). Similarly, a claimant

under 42 U.S.C. § 1985 must adequately allege both a conspiracy, and “some racial, or

perhaps otherwise class-based, invidiously discriminatory animus behind the

conspirators’ action,” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)), which Boseski

has not.

8

and his claim shall have been finally denied by the agency . . . .”). The claim must be

presented in writing, accompanied by a claim for money damages in a “sum certain.”

White-Squire, 592 F.3d at 457–60 & n.4; 28 C.F.R. § 14.2(a) (“For purposes of . . . 28

U.S.C. [§ 2675], a claim shall be deemed to have been presented when a Federal agency

receives from a claimant . . . an executed Standard Form 95 or other written notification

of an incident, accompanied by a claim for money damages in a sum certain . . . .”).

These requirements are jurisdictional. See White-Squire, 592 F.3d at 457.

The DOD supported its motion to dismiss with a sworn declaration that there is no

record of any administrative claim filed by Boseski; nor has Boseski produced any

evidence that she has ever presented a written, sum-certain claim to the appropriate

federal agency.6 Her non-specific allegation that she “reported” her rape to military

authorities is not sufficient to meet the procedural requirements of the FTCA.7 Because

Boseski did not file an administrative claim within two years of the accrual of any of the

claims in her complaint, the District Court correctly dismissed her FTCA claims with

prejudice, as “forever barred” under 28 U.S.C. § 2401(b).

6

In reviewing a factual challenge to a complaint under Rule 12(b)(1), a court may

consider evidence extrinsic to the pleadings, such as depositions and affidavits. Gould

Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Gotha v. United

States, 115 F.3d 176, 179 (3d Cir. 1997)).

7

Because we find that Boseski failed to meet these procedural prerequisites, we need not

address whether her tort claims also fall within one of the exceptions to the FTCA’s

immunity waiver set forth in 28 U.S.C. § 2680.

9

The District Court also properly dismissed Boseski’s constitutional claims against

the DOD on sovereign immunity grounds. See F.D.I.C. v. Meyer, 510 U.S. 471, 478

(1994) (declining to extend the Bivens8 rationale to actions against agencies of the United

States, and stating that “the United States simply has not rendered itself liable under [the

FTCA] for constitutional tort claims”).

Finally, acknowledging that it was “difficult to discern the substance of Plaintiff’s

[breach of contract] claim,” the District Court nonetheless generously construed the claim

as one seeking compensation under Boseski’s enlistment contract with the Army. The

District Court correctly noted, however, that under the “Little Tucker Act,” the federal

district courts have jurisdiction over contract claims against the United States only when

those claims do not exceed $10,000. See 28 U.S.C. § 1346(a)(2). We agree with the

District Court that Boseski’s complaint does not state any readily identifiable claim for

breach of express or implied contract.

Although the District Court did not dismiss the complaint on this basis, we note

that a substantial number of Boseski’s claims against the DOD appear to be barred by

Feres v. United States, 340 U.S. 135 (1950), and its progeny (hereinafter, the “Feres

doctrine”). In Feres, the Supreme Court held that “the Government is not liable under the

[FTCA] for injuries to servicemen where the injuries arise out of or are in the course of

activity incident to service.” Id. at 146. The doctrine developed primarily due to

8

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389

(1971) (recognizing a private cause of action to recover damages against federal actors

for constitutional violations).

10

concerns about the “adverse impact on military discipline inherent in the judicial review

of military orders,” and has been expanded to bar a broad range of claims asserted by

service members. Matreale v. N.J. Dept. of Military & Veterans Affairs, 487 F. 3d 150,

154 (3d Cir. 2007). For example, the doctrine has been applied not only to claims under

the FTCA, but also to Bivens and § 1983 claims against military officers and civilians for

constitutional violations, id. at 153–54 (citing Chappell v. Wallace, 462 U.S. 296, 304

(1983); Jorden v. Nat’l Guard Bureau, 799 F.2d 99, 104–06 (3d Cir. 1986)), and to

damages claims arising out of violations of state tort law. Id. at 154 (citing Jaffee v.

United States, 663 F.2d 1226, 1239 (3d Cir. 1981)).9 Boseski’s complaint clearly alleges

numerous injuries that stem from her military service, and are likely barred by Feres.

See, e.g., Cioca v. Rumsfeld, 720 F.3d 505, 512–15, 518 (4th Cir. 2013) (holding that no

Bivens action would lie for claims by former and current service members who were

victims of sexual assault, alleging that acts and omissions of the Secretary of Defense

contributed to a military culture of tolerance for sexual crimes, by failing to adequately

investigate, punish, or prevent such crimes).

We have carefully considered Boseski’s remaining allegations and have

determined that they do not state any plausible claims for conspiracy, fraud, restraint of

trade, libel, defamation, discrimination, legal malpractice, false arrest or breach of

9

Feres might not bar a claim for medical malpractice against VA doctors where the

alleged injury occurred after discharge, see United States v. Brown, 348 U.S. 110, 112

(1954), but Boseski would be required to exhaust administrative remedies under the

FTCA before bringing any such claim.

11

contract. Inasmuch as these allegations also fail to state a claim against any individual

defendant or governmental entity that would not be barred by the relevant statute of

limitations, by failure to exhaust administrative remedies, or by immunity, amendment of

the complaint would be futile.

Accordingly, we will affirm the District Court’s judgment. Appellant’s motion for

leave to amend her complaint and/or appeal to include new claims and new defendants is

denied.

12