2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-18-2011

Assem Abulkhair v. Jeanette Page-Hawkins

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2341

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Recommended Citation

"Assem Abulkhair v. Jeanette Page-Hawkins" (2011). 2011 Decisions. Paper 340.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/340
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2341

___________

ASSEM A. ABULKHAIR,

Appellant

v.

JEANETTE PAGE-HAWKINS; STATE OF NEW JERSEY; 

PASSAIC COUNTY BOARD OF SOCIAL SERVICES

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 10-cv-02368)

District Judge: Honorable Jose L. Linares

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 14, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Opinion filed: October 18, 2011)

___________

OPINION

___________

PER CURIAM

Assem A. Abulkhair appeals pro se from the District Court’s entry of summary 

judgment in favor of the defendants. We will affirm.

I.
2

From 2002 through 2004, Abulkhair received interim welfare benefits through the 

Passaic County Board of Social Services (“the Board”) pending his application for 

federal Supplemental Security Income. The Social Security Administration granted the 

application in 2004 but withheld $3,407 from its award to reimburse the Board for what it 

had paid. Abulkhair filed a state administrative appeal, arguing that the reimbursement 

was unauthorized and that the Board instead owed him compensation for his community 

work. He also argued that the Board should have made higher monthly payments.

Abulkhair’s appeal initially was assigned to a New Jersey Administrative Law 

Judge (“ALJ”). Jeannette Page-Hawkins, who was then the Director of the New Jersey 

Department of Human Services Division of Family Development, later withdrew the 

appeal from the ALJ and reviewed it herself. Page-Hawkins rejected Abulkhair’s claims 

and upheld the reimbursement on October 20, 2005. Abulkhair appealed to the New 

Jersey Superior Court, Appellate Division. He raised his underlying claims and also 

argued that Page-Hawkins wrongfully withdrew the case from the ALJ. The Appellate 

Division affirmed on March 23, 2007. Abulkhair unsuccessfully sought review by the 

New Jersey and United States Supreme Courts.

Abulkhair then filed suit in New Jersey state court against the Board and the State 

of New Jersey, repeating his claims and asserting that defendants’ alleged conduct 

“violated the Federal and State Minimum Wage Statutes” and “the State and Federal 

Discrimination Statutes together with his constitutional rights.” (Docket No. 30-2 at 67 

¶¶ 17-18.) He did not name Page-Hawkins as a defendant or include any allegations 
3

about her. The Trial Division concluded that Abulkhair’s complaint was barred by his 

agency appeal, the Appellate Division affirmed, and Abulkhair again unsuccessfully 

sought discretionary review.

Finally, Abulkhair filed the federal complaint at issue here. He named the Board, 

the State and Page-Hawkins as defendants and asserted his same underlying claims, 

which he now purports to bring under different federal statutes. He also alleged that 

Page-Hawkins denied him due process by removing his administrative appeal from the

ALJ. The Board never responded to the complaint, and Abulkhair filed a motion for 

default judgment against it. The State and Page-Hawkins filed a motion to dismiss or for 

summary judgment, arguing that the complaint is barred by res judicata and New Jersey’s 

related entire controversy doctrine. They also argued that the complaint is barred for 

other reasons, including the Rooker-Feldman doctrine and the statute of limitations. 

The District Court notified the parties of its intention to treat the motion as one for 

summary judgment and allowed them to submit additional evidence. They declined to do 

so, and the court entered summary judgment in favor of all defendants on May 10, 2011. 

The court rejected defendants’ Rooker-Feldman argument but agreed that the complaint 

is barred by res judicata and the entire controversy doctrine. It also denied Abulkhair’s 

motion for a default judgment against the Board as moot. Abulkhair appeals.1

 

1 We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s entry 

of summary judgment is plenary. See Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 

2010). We may affirm the District Court’s judgment on any ground supported by the 

record. See id. We review the District Court’s denial of a motion for a default judgment 
4

II.

Abulkhair frames his arguments in terms of the Rooker-Feldman doctrine, which 

the District Court did not apply, but the primary issue on appeal is the preclusion of his 

claims. The Full Faith and Credit Act requires federal courts to give state court 

judgments the same preclusive effect that the state courts would give them. See 28 

U.S.C. § 1738; Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 572-73 

(3d Cir. 2002). 

In this case, the District Court concluded that all of Abulkhair’s claims are barred 

by res judicata and the entire controversy doctrine. We agree that all of his claims 

against the Board and the State, which Abulkhair named as defendants in his state court 

complaint, are barred by those doctrines under New Jersey law. See Jones v. Holvey, 29 

F.3d 828, 830 (3d Cir. 1994). Indeed, the New Jersey courts themselves already have so 

held. Such claims remain barred despite Abulkhair’s invocation of different statutes 

because his new legal theories do not change the nature of his underlying claims. See

DiTrolio v. Antiles, 662 A.2d 494, 504 (N.J. 1995).

The District Court, however, did not mention or apply preclusion principles to 

Abulkhair’s claim that Page-Hawkins denied him due process by removing his agency 

appeal from the ALJ and deciding it herself. Abulkhair did not assert that claim or name 

Page-Hawkins as a defendant in his state-court complaint, and the New Jersey courts thus 

did not address the claim in that context. The District Court did not discuss whether 

 

for abuse of discretion. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).
5

Abulkhair’s state-court complaint nevertheless triggers res judicata or the entire 

controversy doctrine as to that claim, and we question whether it does.2

The District Court also did not discuss whether Abulkhair’s agency appeal triggers 

those doctrines, and we question that point as well. Abulkhair argued in that appeal that 

Page-Hawkins improperly removed his case from the ALJ, and the Appellate Division 

rejected his argument as follows: “Plaintiff argues that the matter was improperly 

removed from [the ALJ] based on the D[ivision of Family Development]’s fear of an 

adverse ruling. We reject this claim.” (Docket No. 30-2 at 30 & n.1.)3 This ruling does 

not necessarily preclude Abulkhair’s federal due process claim. We held in a similar case 

that a prior New Jersey agency appeal did not preclude such a claim because, “[b]ased on 

our review of New Jersey cases, we predict that a New Jersey appellate court faced with 

 

2 Res judicata generally applies to parties in privity with those named in a prior action 

and to claims that were not but could have been asserted in that action. See Holvey, 29 

F.3d at 830. Even if Page-Hawkins is in privity with the State in her official capacity, 

however, and even if Abulkhair’s claim that she denied him due process is sufficiently 

related to his underlying claims for res judicata and entire controversy purposes (which is 

questionable, see id.), those doctrines may not apply to his claim against her in her 

individual capacity. Cf. Gregory v. Chehi, 843 F.2d 111, 120-21 (3d Cir. 1988) (so 

concluding under Pennsylvania law). In addition, the entire controversy doctrine requires 

the joinder of related claims but not related parties. See Kent Motor Cars, Inc. v. 

Reynolds & Reynolds, Co., — A.3d —, Nos. A-102/103 September Term 2009, 2011 

WL 1991155, at *8 (N.J. May 18, 2011); Paramount Aviation Corp. v. Agusta, 178 F.3d 

132, 135 n.1 (3d Cir. 1999). 

3

The defendants have not argued that this ruling bars the claim as a matter of collateral 

estoppel/issue preclusion (as opposed to res judicata or the entire controversy doctrine), 

and the District Court did not address that issue. See Caver v. City of Trenton, 420 F.3d 

243, 259 (3d Cir. 2005) (explaining that collateral estoppel under New Jersey law 

requires, inter alia, prior litigation of the identical issue). 
6

[a] section 1983 claim at the time that it was evaluating [an administrative] appeal . . . 

would not exercise original jurisdiction” to decide that claim. Holvey, 29 F.3d at 832. 

Neither the District Court nor defendants have addressed that decision.

It is not necessary for us to resolve these issues or remand for the District Court to 

do so, however. As Defendants argue, Abulkhair’s § 1983 claim against Page-Hawkins 

is barred by the statute of limitations. The applicable statute is New Jersey’s two-year 

statute of limitations for personal injury actions. See Dique v. N.J. State Police, 603 F.3d 

181, 185 (3d Cir. 2010). In this case, Page-Hawkins decided Abulkhair’s administrative 

appeal on October 20, 2005. (Docket No. 30-2 at 24-26.) Abulkhair was aware of any 

claim in that regard at least by November 2, 2005, when he argued to the Appellate 

Division that Page-Hawkins’s removal of the appeal from the ALJ was improper. (Id. at 

27-28.) The Appellate Division rejected that argument on March 23, 2007. (Id. at 29-

30.) Even using that date as the date of accrual, the two-year statute of limitations had 

long expired when Abulkhair filed his federal complaint on May 7, 2010. Page-Hawkins 

moved for summary judgment on statute of limitations grounds and Abulkhair submitted 

nothing calling its application into question. Thus, there is no doubt that this claim is 

barred by the statute of limitations.

Abulkhair raises several arguments that require some additional discussion. First, 

he argues that the District Court should have granted his motion for a default judgment 

against the Board instead of granting summary judgment in its favor because the Board

itself never moved for summary judgment or otherwise responded to his complaint. We 
7

reject that argument. The District Court’s entry of summary judgment as to the Board is 

properly construed as the entry of summary judgment sua sponte. Such an entry is 

permissible when the District Court provides notice of its intention to entertain summary 

judgment and an opportunity to respond. See Couden v. Duffy, 446 F.3d 483, 500 (3d 

Cir. 2006). The District Court provided such notice and opportunity here. The fact that 

the Board itself did not move for summary judgment is of no moment because the other 

defendants moved for summary judgment on the grounds discussed above and they apply 

equally to the Board. See id. In light of the Board’s meritorious defense, the District 

Court also did not abuse its discretion in denying Abulkhair’s motion for a default 

judgment. See Chamberlain, 210 F.3d at 164.

Second, Abulkhair argues that the record was not adequately developed to apply 

preclusion principles. He notes the District Court’s statement that defendants had not 

submitted a copy of his state-court complaint. (Docket No. 40 at 3.) Defendants, 

however, in fact submitted a copy (Docket No. 30-2 at 65-68), and we have reviewed it 

as part of our plenary review. Abulkhair also asserts that defendants failed to properly 

certify their state-court documents by affidavit. Abulkhair does not claim that the 

documents are not authentic, however, and we see no basis to question their authenticity.

Third, Abulkhair argues that the District Court overlooked his summary judgment 

response because, although he submitted one (Docket No. 35), the District Court stated 

that “Plaintiff has failed to file any substantive opposition to Defendants’ motion[.]” 

(Docket No. 40 at 2.) The District Court, however, clearly was referring to Abulkhair’s 
8

failure to submit an additional substantive response after it notified the parties that it 

would treat defendants’ motion as one for summary judgment. In any event, we have 

reviewed the record de novo, and Abulkhair submitted nothing raising a genuine issue of 

material fact.

Finally, Abulkhair argues at length that he did not sign an agreement authorizing 

the Board’s recoupment and that the state court finding to the contrary is an 

“unreasonable determination of the facts” within the meaning of the federal habeas 

corpus statute, 28 U.S.C. § 2254(d)(2). The habeas statute has no application in this 

context, however, and Abulkhair may not relitigate this claim for the reasons explained 

above.

For these reasons, we will affirm the District Court’s judgment.