NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

GEORGE C. JOHNSON, :

:

Plaintiff, : Civil Action No. 11-1528 (JAP)

v. :

:

UNITED STATES OF AMERICA, et al., : OPINION

:

Defendants. :

___________________________________ :

PISANO, District Judge.

Pro se Plaintiff George C. Johnson brings this action against Defendants United States of 

America, United States Treasury Department, New Jersey Department of Human Services, 

Monmouth County Division of Social Services, Monmouth Vicinage Probation Services 

Division,1and numerous named and unnamed individuals. Presently before the Court are several 

motions: motions to dismiss Plaintiff’s complaint filed by all named Defendants; a motion to 

vacate arrears filed by Plaintiff; a motion for leave to file a late notice of claim pursuant to the 

New Jersey Tort Claims Act filed by Plaintiff; and a motion for admissions filed by Plaintiff. 

For the reasons below, the Court will grant Defendants’ motions to dismiss and will deny 

Plaintiff’s motions.

I. BACKGROUND2

Plaintiff submitted his complaint to this Court on March 16, 2011. Therein, he

challenges an outstanding support obligation. Although he concedes that he has an obligation for 

 

1

Plaintiff’s pleadings improperly refer to this entity as the “Monmouth County Probation Department.”

2

In addressing a motion to dismiss, the Court must accept as true the allegations contained in a complaint. See Toys 

"R" US, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003); Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 

1301 (3d Cir. 1996). Accordingly, the facts recited herein are taken from Plaintiff’s complaint unless otherwise 

indicated; they do not represent this Court’s factual findings.

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past-owed support, he contests the amount for which he is responsible. Specifically, Plaintiff 

maintains that, instead of owing $38,954.14, he owes only half of that amount, or $19,477.07, 

minus any arrears that directly benefit Karen Saunders, the mother of his sons. He asserts three 

causes of action, all captioned as negligence claims. Within those claims, Plaintiff asserts that 

his rights under the Fifth, Eighth, and Fourteenth Amendments, as well as Article I, Section 8 of 

the U.S. Constitution, were violated. 

In a submission dated April 23, 2011 and captioned as a complaint, Plaintiff attempts to 

clarify the basis for his claims. See Dkt. Entry 5. He states that his constitutional claims are 

brought pursuant to 42 U.S.C. § 19833, and further asserts that “[o]n November 26, 2010, the 

defendants negligently by Administrative Offset and federal tax refund offset, continue to state 

and take an incorrect and unlawful amount by withholding.” Id. 

All named Defendants have filed motions to dismiss Plaintiff’s complaint. See Dkt. 

Entries 23, 29, 31, 37, 63. In their motions, Defendants assert that, inter alia, Plaintiff’s claims 

are barred by the doctrines of sovereign immunity and Rooker-Feldman, the Court lacks 

jurisdiction to hear his claims insofar as he challenges the offset of his tax refund, and his

negligence claims are barred by the New Jersey Tort Claims Act. 

Plaintiff opposes Defendants’ motions to dismiss. Additionally, he has filed several other 

motions in this action, including a motion to vacate all arrears owed to Defendant Karen 

Saunders4, a motion for leave to file a late notice of claim, and a motion for admissions. See

Dkt. Entries 13, 36, 56. 

 

3

Plaintiff cites 42 U.S.C. § 1983 as the basis for jurisdiction over his constitutional claims and asserts that 

Defendants violated and deprived him of his rights “under color of law,” thereby utilizing the language contained in 

§ 1983. Additionally, in his original complaint, Plaintiff makes numerous similar references to alleged deprivations 

“under color of law.” Thus, the Court reads Plaintiff’s federal constitutional claims as having been brought pursuant 

to § 1983. 

4 Because the allegations contained in this motion are analogous to those in Plaintiff’s complaint, the Court will 

consider the motion in conjunction with Defendants’ motions to dismiss.

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II. STANDARDS OF REVIEW

Defendants seek dismissal under both Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6). Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of 

claims based on a lack of subject matter jurisdiction. Challenges to jurisdiction under 12(b)(1) 

may be either facial or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). 

A facial attack challenges the sufficiency of the pleadings, and the trial court “must consider the 

allegations of the complaint as true.” Id. However, in a factual attack, plaintiff’s allegations are 

afforded no presumption of truthfulness. Id. The plaintiff bears the burden of establishing that 

jurisdiction exists. Id. 

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if 

the complaint fails to state a claim upon which relief can be granted. The Supreme Court set 

forth the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v. 

Twombly, 550 U.S. 544 (2007). The Twombly Court stated that, “[w]hile a complaint attacked 

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 

obligation to provide the grounds of his entitle[ment] to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 

555 (internal citations omitted). Therefore, for a complaint to withstand a motion to dismiss 

under Rule 12(b)(6), the “[f]actual allegations must be enough to raise a right to relief above the 

speculative level, on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact).” Id. (internal citations and footnote omitted).

More recently, the Supreme Court emphasized that, when assessing the sufficiency of a 

civil complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 

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S. Ct. 1937, 1949 (2009). A complaint will be dismissed unless it “contain[s] sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 

Twombly, 550 U.S. at 570). This “plausibility” determination will be “a context-specific task 

that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 

1950. To help guide a district court’s evaluation of a motion to dismiss, the Third Circuit has 

established a three-part analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead to state

a claim.” Second, the court should identify allegations that, “because they are 

no more than conclusions, are not entitled to the assumption of truth.” Finally, 

“where there are well-pleaded factual allegations, a court should assume their 

veracity and then determine whether they plausibly give rise to an entitlement 

for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 

1947-50)). In determining the sufficiency of a pro se complaint, the Court must be mindful to 

construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); 

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

III. DISCUSSION

A. Rooker-Feldman Doctrine

As a threshold matter, the Rooker-Feldman doctrine bars Plaintiff’s claims to the extent 

that they concern determinations made in state court. The Rooker-Feldman doctrine prohibits 

District Courts from adjudicating actions in which “the relief requested . . . requires determining 

that the state court’s decision is wrong or . . . void[ing] the state court’s ruling.” Desi’s Pizza 

Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003) (internal citations omitted). Thus, 

this Court lacks jurisdiction over Plaintiff’s claims insofar as he seeks review or modification of 

support orders entered against him in the Superior Court of New Jersey. See Eisenstein v. 

Ebsworth, 148 F. App’x 75, 77-78 (3d Cir. 2005) (Rooker-Feldman doctrine warranted dismissal 

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where claims involved challenge to state court child support order); Zirkind v. State of New York, 

2007 WL 4300258, at *2 (D.N.J. Dec. 5, 2007) (no jurisdiction where plaintiff’s claims involved 

a review of a support order entered in state court proceedings). 

B. Immunity

 Even assuming that Plaintiff’s complaint contains allegations that are not barred by the 

Rooker-Feldman doctrine, the doctrine of sovereign immunity warrants dismissal of Plaintiff’s 

federal claims. The Eleventh Amendment to the United States Constitution provides: “The 

Judicial power of the United States shall not be construed to extend to any suit in law or equity, 

commenced or prosecuted against one of the United States by Citizens of another State, or by 

Citizens or Subjects of any Foreign State.” As developed, the Eleventh Amendment affords 

states and state agencies immunity from suits brought by citizens in federal court. MCI Telecom. 

Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503–04 (3d Cir. 2001); Edelman v. Jordan, 415 U.S. 651, 

663 (1974). That immunity is not absolute, however, and three primary exceptions have been 

established that limit the breadth of the Eleventh Amendment: (1) congressional abrogation; (2) 

waiver by the state; and (3) suits against individual state officers for prospective injunctive and 

declaratory relief. MCI, 271 F.3d at 503.

Here, Congress' enactment of § 1983 did not abrogate states' immunity, see Quern v. 

Jordan, 440 U.S. 332, 340–41 (1979), and none of the named parties have consented to suit nor 

waived their immunity. See MCI, 271 F.3d at 503–04. Thus, because “[s]tate governments and 

their subsidiary units are immune from suit in federal court,” Plaintiff’s federal claims against 

the named state agencies are barred by the Eleventh Amendment. Betts v. New Castle Youth 

Dev. Center, 621 F.3d 249, 253–54 (3d Cir. 2010); see Salerno v. Corzine, 2006 WL 3780587, at 

*3 (D.N.J. Dec. 20, 2006) (New Jersey Department of Human Services is immune from suit 

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under Eleventh Amendment); Otero v. County of Monmouth, 2007 WL 1656851, at *3-4 (D.N.J. 

June 5, 2007) (Monmouth County Probation Department is not a “person” within the meaning of 

§ 1983 and is therefore entitled to sovereign immunity from federal claims); El-Bey v. Peer, 

2006 WL 231627, at *5 (D.N.J. Jan. 30, 2006) (same as to Monmouth County Division of Social 

Services). Likewise, the Eleventh Amendment bars Plaintiff’s claims against all individual 

Defendants.

5

 See, e.g., Betts, 621 F.3d at 254 (“Individual state employees sued in their official 

capacity are also entitled to Eleventh Amendment immunity because “‘official-capacity suits 

generally represent only another way of pleading an action’ against the state.”) (internal citations 

omitted).6

Defendants United States of America and United States Treasury Department are 

similarly immune from Plaintiff’s claims. Indeed, it is well-settled that the federal government 

and federal agencies enjoy immunity from suit absent consent or waiver. See, e.g., FDIC v. 

Meyer, 510 U.S. 471, 475 (1994) (“[i]t is axiomatic that the United States may not be sued 

without its consent and that the existence of consent is a prerequisite for jurisdiction”).7 

Additionally, insofar as Plaintiff challenges the Treasury Department over an offset of his tax 

refund, this Court lacks jurisdiction to hear that claim. See 26 U.S.C. § 6402(g) (“No court of 

 

5 Because the Court is dismissing all of Plaintiff’s claims insofar as they are asserted against named Defendants, 

Plaintiff’s claims against the fictitious John and Jane Doe defendants must also be dismissed. See Hindes v. 

F.D.I.C., 137 F.3d 148, 155-56 (3d Cir .1998) (“The case law is clear that ... an action cannot be maintained solely 

against Doe defendants.”); Didiano v. Balicki, 2011 WL 1466131, at *11 (D.N.J. Apr. 18, 2011) (“An action cannot 

be maintained against fictitious defendants.”). 

6 The Court further notes that Plaintiff’s failure to identify the particular conduct for which each state and local 

government Defendant is responsible constitutes an additional ground for dismissal. See Ross v. Meagan, 638 F.2d 

646, 650 (3d Cir. 1981) (“This court has consistently demanded that a civil rights complaint contain a modicum of 

factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiff.”); 

Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970) (a § 1983 complaint “must portray specific conduct by state 

officials which violates some constitutional right of the complainant.”). Moreover, even construed liberally, 

Plaintiff’s complaint is beset with “labels and conclusions, and . . . formulaic recitation[s] of the elements of a cause 

of action”—insufficient showings to withstand a motion to dismiss. Twombly, 550 U.S. at 555.

7 Although the Federal Tort Claims Act (“FTCA”) constitutes a limited waiver of immunity from tort claims, see 28 

U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150 (1963), a constitutional tort is not cognizable under the 

FTCA. See F.D.I.C., 510 U.S. at 477. 

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the United States shall have jurisdiction to hear any action, whether legal or equitable, brought to 

restrain or review a reduction authorized by subsection (c), (d), or (e).”); Johnson v. I.R.S., 2001 

WL 1175151, at *1 (E.D. Pa. 2001) (Court had no jurisdiction over claims against the Treasury 

Department because § 6402 authorizes collection actions and plaintiff's allegations against the 

Department were limited to actions in connection with the offset of his tax refund). Accordingly, 

dismissal is warranted as to Plaintiff’s federal claims against all Defendants. 

C. New Jersey Tort Claims Act

To the extent that Plaintiff seeks to assert common law negligence claims against 

Defendants, his recovery is barred by the New Jersey Tort Claims Act. In order to bring a tort 

action against a “public entity or public employee” in New Jersey, the New Jersey Tort Claims 

Act (“NJTCA”) requires a claimant to file a notice of claim with the entity within ninety days of 

the accrual of the claim or else be “forever barred” from asserting that cause of action. County 

Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 174 (3d Cir. 2006) (citing N.J.S.A. 59:8-3 

and -8). After the ninety-day period expires, the NJTCA allows a claimant, under certain 

circumstances, to petition the trial court to file a late notice of claim. Moon v. Warren Haven 

Nursing Home, 182 N.J. 507 (2005) (citing N.J.S.A. 59:8-9). The trial court has discretion in 

determining whether to grant a claimant’s request, and the claimant is required to demonstrate 

that “the public entity or the public employee has not been substantially prejudiced” by the delay, 

and that there were “extraordinary circumstances” that led to the failure to file within the period 

of time prescribed. N.J. Stat. Ann. 59:8-9.

Here, Plaintiff’s failure to timely file a notice of claim warrants dismissal of his 

negligence claims. Although he asserts that the alleged accident giving rise to his claims 

occurred on January 21, 2011, Plaintiff did not file a notice of claim until at least May 31, 2011, 

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well after the ninety-day period expired.8 See Docket Entry 24. Moreover, the explanations he 

offers for his delay—namely, the death of Karen Saunders in January 2011 and medical concerns 

involving his mother in June 2011—do not constitute “extraordinary circumstances” that justify 

permitting him leave to file a late notice of claim. Indeed, Plaintiff found time to submit his 

complaint to this Court on March 16, 2011—well within the ninety-day period and two months 

before submitting his initial notice of claim—and the medical concerns involving his mother 

arose after he had already submitted his notice of claim and, correspondingly, after the filing 

period had expired. Accordingly, Plaintiff’s failure to comply with the requirements of the

NJTCA bars his negligence claims.

IV. CONCLUSION

For the reasons above, the Court grants Defendants’ motions to dismiss and denies 

Plaintiff’s motions. An appropriate Order will follow. 

/s/ JOEL A. PISANO 

United States District Judge

Dated: December 6, 2011 

 

8 The Court notes that the submission of a notice of claim after the ninety-day time period expires is a nullity if done 

without first seeking leave. Additionally, the filing of a complaint is not a substitute for the notice of claim 

requirement. See Guzman v. City of Perth Amboy, 214 N.J. Super. 167, 171-72 (App. Div. 1986).

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