2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2009

Eleanor Capogrosso v. Advisory Committee on

Judicial

Precedential or Non-Precedential: Precedential

Docket No.;08-3816

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3816

___________

ELEANOR CAPOGROSSO,

 

 Appellant

v.

THE SUPREME COURT OF THE STATE OF NEW

JERSEY; STUART RABNER (INTENDED TO BE THE

CHIEF JUDGE OF THE SUPREME COURT OF NEW

JERSEY); ADVISORY COMMITTEE ON JUDICIAL

CONDUCT; CANDACE MOODY (INTENDED TO BE

THE DISCIPLINARY COUNSEL FOR THE ADVISORY

COMMITTEE ON JUDICIAL CONDUCT); JOHN

TONELLI (INTENDED TO BE THE DIRECTOR OF THE 

ADVISORY COMMITTEE ON JUDICIAL CONDUCT);

HON. MAURICE J. GALLIPOLI, J.S.C.; HON. PETER F.

BARISO, J.S.C.; HON. BARBARA A. CURRAN, J.S.C.;

HON. MAHLON L. FAST, J.S.C.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey
2

(D.C. Civil Action No. 07-cv-05579)

District Judge: Honorable Faith S. Hochberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 1, 2009

Before: RENDELL, FUENTES and ALDISERT, Circuit

Judges

(Opinion filed: November 27, 2009)

___________

OPINION

___________

PER CURIAM

Pro se appellant Eleanor Capogrosso, an attorney, filed

a civil rights action against, inter alia, four New Jersey Superior

Court judges, the New Jersey Advisory Committee on Judicial

Conduct (“ACJC”), ACJC Disciplinary Counsel Candace

Moody, and ACJC Director John Tonelli. Her claims stemmed

from alleged judicial misconduct in her state court cases and

alleged misconduct on the part of the ACJC, which is charged

under the New Jersey Rules of Court with investigating claims

of judicial misconduct. Capogrosso appeals from the District

Court decision dismissing her 42 U.S.C. § 1983 complaint under

Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction
3

pursuant to 28 U.S.C. § 1291. 

I

Since around 2001, Capogrosso has been involved as a

litigant in various state court lawsuits related to tenancy

disputes. During the course of these cases, Capogrosso

appeared before Superior Court Judges Gallipoli, Fast, Curran,

and Bariso. At some point in each case, the judges’ judicial

conduct appeared to Capogrosso as criminal or violative of her

rights as a litigant. Following each incident, she filed a

complaint with the ACJC. The ACJC dismissed all five

complaints.

In November 2007, Capogrosso filed a 21-claim

complaint in the District Court. Five of those claims alleged

that the Superior Court judges’ conduct on the bench amounted

to criminal behavior. Capogrosso also raised claims, citing both

the Fourteenth Amendment and 42 U.S.C. § 1983, that the

ACJC violated her rights by dismissing her complaints against

the judges. Based on these alleged violations, Capogrosso

raised five claims for costs and attorney’s fees. Further,

Capogrosso claimed that New Jersey Court Rule 2:15, which

established the ACJC, violates the New Jersey Constitution.

 

Capogrosso also alleged that, during the pendency of her

federal case, another incident involving Judge Fast occurred.

While in Superior Court, Capogrosso was waiting with her

attorney outside of Judge Fast’s chambers. Judge Fast exited his

chambers, saw Capogrosso with her attorney, and entered the

chambers of Superior Court Judge Iglesias, before whom
 In her notice of appeal, Capogrosso states that she 1

appeals all unfavorable orders related to the dismissal of her

complaint. Because Capogrosso is an experienced litigant, we

limit our consideration to the arguments raised in her

appellate brief. Nevertheless, we remain mindful of our

obligation to construe a pro se litigant’s pleadings liberally. 

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

4

Capogrosso was about to appear as a litigant. When she

appeared before Judge Iglesias, he denied a motion her attorney

had filed, although her lawyer commented to her that such

motions were routinely granted. Capogrosso amended her

federal complaint to allege that Judge Iglesias’ surprising ruling,

viewed in light of his interaction with Judge Fast before

Capogrosso’s court appearance, gave rise to an inference of

improper influence, in violation of her due process rights. 

The Defendant-Appellees filed a Rule 12(b)(6) motion to

dismiss, which the District Court granted. Capogrosso’s motion

for reconsideration was denied and she filed a timely notice of

appeal.1

II

We exercise plenary review over the District Court order

granting the Rule 12(b)(6) motion. See McGovern v.

Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). “We accept all

well-pleaded allegations in the complaint as true and draw all

reasonable inferences in [Capogrosso’s] favor.” Id. “The

District Court’s judgment is proper only if, accepting all factual
5

allegations as true and construing the complaint in the light most

favorable to [Capogrosso], we determine that [she] is not

entitled to relief under any reasonable reading of the complaint.”

Id. 

The District Court dismissed Capogrosso’s criminal

claims against the Superior Court judges under the doctrine of

judicial immunity. “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). “A judge will not be deprived of immunity because the

action he took was in error, was done maliciously, or was in

excess of his authority; rather, he will be subject to liability only

when he has acted ‘in the clear absence of all jurisdiction.’” Id.

(quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).

Here, the District Court reasoned that all of the allegations

against Judges Gallipoli, Bariso, Fast, and Curran related to

actions they took as judges. We agree and note that despite her

unsupported assertions to the contrary, Capogrosso has not set

forth any facts that would show that any of the judges acted in

the absence of jurisdiction. Likewise, the District Court

correctly noted that Capogrosso’s criminal claims fail to state a

cause of action under § 1983, as individual citizens do not have

a constitutional right to the prosecution of alleged criminals.

See Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988).

We also agree that Capogrosso failed to state a § 1983

claim for Judge Fast’s alleged improper influence. The Federal

Rules of Civil Procedure require that a plaintiff assert more than

mere labels and conclusions. See Fed. R. Civ. P. 8; Phillips v.

County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008).
6

“[A] complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’ A

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570

(2007)). Thus, a “judicial conspiracy” claim must include at

least a discernible factual basis to survive a Rule 12(b)(6)

dismissal. See Crabtree v. Muchmore, 904 F.2d 1475, 1480-81

(10th Cir. 1990). To wit:

The Court is mindful that direct evidence of a

conspiracy is rarely available and that the

existence of a conspiracy must usually be inferred

from the circumstances. The Court is equally

mindful that caution is advised in any pre-trial

disposition of conspiracy allegations in civil rights

actions.

However, the rule is clear that allegations of a

conspiracy must provide some factual basis to

support the existence of the elements of a

conspiracy: agreement and concerted action. A

conspiracy cannot be found from allegations of

judicial error, ex parte communications (the

manner of occurrence and substance of which are

not alleged) or adverse rulings absent specific

facts demonstrating an agreement to commit the

alleged improper actions.
 Notably, Capogrosso sued Director Tonelli and 2

Disciplinary Counsel Moody in their official capacities.

7

Id. at 1481 (internal citations and quotation marks omitted).

Here, Capogrosso alleged only that Judge Fast interacted with

Judge Iglesias after presumably hearing her discuss her case in

a hallway, and that Judge Iglesias’ subsequent adverse ruling

gives rise to an inference of conspiratorial conduct. The District

Court reasoned that, without more, Capogrosso failed to state a

cognizable claim under § 1983. We agree.

III

We turn next to Capogrosso’s claims against the ACJC,

Disciplinary Counsel Moody, and Director Tonelli (collectively,

“ACJC”). At the outset, we note our agreement with the 2

District Court’s analysis concerning the overlap between

Capogrosso’s § 1983 claims against ACJC and her identical

Fourteenth Amendment claims. Inasmuch as § 1983 affords a

remedy for infringement of one’s constitutional rights, identical

claims raised under the Fourteenth Amendment are redundant,

rendering the outcome of the § 1983 claims dispositive of the

independent constitutional claims. See Rogin v. Bensalem

Twp., 616 F.2d 680, 686-87 (3d Cir. 1980). 

 In dismissing Capogrosso’s claims against the ACJC, the

District Court reasoned that the entity and its employees are

entitled to Eleventh Amendment immunity. The Eleventh

Amendment to the United States Constitution protects an

unconsenting state or state agency from a suit brought in federal
8

court, regardless of the relief sought. See MCI Telecomm.

Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir.

2001). This immunity does not extend to individual state

officers sued in their individual capacities for prospective

injunctive or declaratory relief to remedy ongoing violations of

federal law. See id. Inasmuch as Capogrosso sought relief

against the ACJC and its employees only in their official

capacities, dismissal of her claims was appropriate. See Hirsh

v. Justices of Sup. Ct. of California, 67 F.3d 708, 715 (9th Cir.

1995). To the extent that Capogrosso’s pro se complaint can be

read to include claims against Director Tonelli and Disciplinary

Counsel Moody in their individual capacities, they are entitled

to quasi-judicial immunity and thus not subject to suit for

injunctive relief. See id. Thus we agree with the District

Court’s dismissal of Capogrosso’s § 1983 and Fourteenth

Amendment claims. Accordingly, the District Court properly

dismissed Capogrosso’s five claims for attorney’s fees and costs

based on the alleged constitutional violations.

IV

Lastly, we address Capogrosso’s claim that New Jersey

Court Rule 2:15 violates the New Jersey Constitution. In

dismissing that claim, the District Court reasoned that

Capogrosso failed to state a claim cognizable under § 1983, as

that provision only provides remedies for a deprivation of a

person’s “rights, privileges or immunities secured by the

Constitution or laws of the United States.” 42 U.S.C. § 1983;

see Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)
 Inasmuch as Capogrosso invoked the District Court’s 3

supplemental jurisdiction over a related state law claim, we

understand the District Court to have declined to exercise it. 

See 28 U.S.C. § 1367(c).

9

(quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)). We

3

agree.

The District Court further reasoned that even if

Capogrosso had raised a claim under the United States

Constitution, the claim would still be dismissed because her bare

allegation that the ACJC’s confidential procedures facilitate

improper decisions failed for the same reason as her “judicial

conspiracy” claim. That is, her mere labeling of the ACJC’s

practices as unconstitutional, without greater factual support,

was insufficient to support a claim for relief under § 1983.

Again, we agree. 

Accordingly, and for the foregoing reasons, we will

affirm the judgment of the District Court. The Appellees’

motion to file a supplemental appendix and to supplement the

record is denied. Appellant’s motion for leave to file a

supplemental appendix is denied. Appellant’s motion for leave

to file a reply brief out of time and to file an overlength reply

brief is granted. Appellant’s motion for a protective order and

for an expedited decision is denied. See Fed. R. App. P. 8(a); 3d

Cir. L.A.R. 4.1. Appellant’s motion for oral argument is denied.