NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AUDREY CARTER, : 

 : Civil Action No. 11-1043(FLW)

Plaintiff, : 

 :

 :

v. : OPINION

 :

NEW JERSEY STATE AND :

UNEMPLOYMENT OFFICE, et al., :

 :

Defendants. :

APPEARANCES:

AUDREY CARTER, Plaintiff pro se

1701 Salem Road, Apt. N-12

Burlington, New Jersey 08106

WOLFSON, District Judge

Plaintiff Audrey Carter (hereinafter “Plaintiff”), brings

this action in forma pauperis, alleging that the named defendants

discriminated against her while she was waiting in line at the

unemployment office. (Plaintiff’s Complaint, pg. 1). The Court

has considered Plaintiff’s application for indigent status in

this case and concludes that she is permitted to proceed in forma

pauperis without prepayment of fees or security thereof, in

accordance with 28 U.S.C. § 1915(a). However, having reviewed

the Complaint pursuant to 28 U.S.C. § 1915(e)(2), and for the

reasons set forth below, this Court finds that this action should

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be dismissed for failure to state a claim upon which relief may

be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 

BACKGROUND

Plaintiff brings this action against the following

defendants: the New Jersey State Unemployment Office; New Jersey

Attorney General Paula Dow; New Jersey Governor Christopher

Christie; unnamed New Jersey Unemployment Security Officer and

Unemployment Supervisor John (last name unknown). (Compl., pg.

1). Plaintiff alleges that, on February 16, 2011, the

unemployment supervisor named “John” at the Yard Avenue, Trenton,

New Jersey office, “discriminate[d]” against plaintiff while she

was standing in the line waiting for her number to be called. 

Plaintiff states that she had visited the office more than six

times and “John” harassed her each time. On February 16, 2011,

“John” had a security officer tell plaintiff to leave the

premises “for no reason.” (Id.)

Plaintiff asks to be awarded damages in the amount of

$600,000.00 for pain and suffering, differential treatment and

discrimination. (Id.) 

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DISCUSSION

A. Standard of Review

The Complaint by a litigant proceeding in forma pauperis is

subject to sua sponte dismissal by the court if the Complaint is

frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks money damages from defendants who are

immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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)(following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972)). See also United States v. Day, 969

F.2d 39, 42 (3d Cir. 1992). The Court must “accept as true all

of the allegations in the complaint and all reasonable inferences

that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Morse v. Lower Merion School Dist.,

132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however,

credit a pro se plaintiff’s “bald assertions” or “legal

conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

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complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

 Rule 8(d)(1) provides that “[e]ach allegation must be 1

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

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Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

 In Conley, as stated above, a district court was 2

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

B. Failure to State a Claim

Plaintiff simply alleges that the unemployment supervisor

“John” discriminated against her, but she fails to allege any

facts to support a claim that the purported discrimination was

based on age, race or gender. This allegation is nothing more

than a legal conclusion wholly unsupported by any factual

allegation, which is insufficient to state a claim under Iqbal. 

See Iqbal, 129 S.Ct. at 1950.

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Consequently, the Complaint will be dismissed, in its

entirety, as against defendants, Unemployment Supervisor “John”

and the John Doe Unemployment security officer(s), for failure to

state a claim at this time.

C. Claim Against Defendants Dow and Christie

It also appears that Plaintiff is asserting a claim of

liability against New Jersey Governor Chris Christie and New

Jersey Attorney General Paula Dow, on the sole basis that they

have a supervisory capacity over the New Jersey State

Unemployment Office employees. The Complaint fails to allege any

facts in support of a claim based on supervisor liability. 

Accordingly, the Complaint should be dismissed as against

defendants Christie and Dow pursuant to Iqbal.

As a general rule, government officials may not be held

liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior. See Iqbal, 129 S.Ct. at

1948; Monell v. New York City Dept. Of Social Servs., 436 U.S.

658, 691 (1978)(finding no vicarious liability for a municipal

“person” under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S.

507, 515-16 (1888)(“A public officer or agent is not responsible

for the misfeasances or position wrongs, or for the nonfeasances,

or negligences, or omissions of duty, of subagents or servants or

other persons properly employed by or under him, in discharge of

his official duties”). In Iqbal, the Supreme Court held that

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“[b]ecause vicarious or supervisor liability is inapplicable to

Bivens and § 1983 suits, a plaintiff must plead that each 3

Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 129

S.Ct. at 1948. Thus, each government official is liable only for

his or her own conduct. The Court rejected the contention that

supervisor liability can be imposed where the official had only

“knowledge” or “acquiesced” in their subordinates conduct. Id.,

129 S.Ct. at 1949. 

Here, in the instant Complaint, there are no allegations of

any wrongful conduct with respect to defendants Christie and Dow,

other than their supervisory titles as Governor and Attorney

General of the State of New Jersey. Accordingly, any § 1983

claim must be dismissed as against these defendants.

D. Claim Against State of New Jersey and Unemployment Office

Finally, the Complaint names the State of New Jersey and the 

State Unemployment Office as defendants in this matter. The

Eleventh Amendment to the United States Constitution provides

that, “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.”

 Bivens v. Six Unknown Named Agents of Federal Bureau of 3

Narcotics, 403 U.S. 388 (1971)

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As a general proposition, a suit by private parties seeking

to impose a liability which must be paid from public funds in a

state treasury is barred from federal court by the Eleventh

Amendment, unless Eleventh Amendment immunity is waived by the

state itself or by federal statute. See, e.g., Edelman v.

Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment

protects states and their agencies and departments from suit in

federal court regardless of the type of relief sought. Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). 

Similarly, absent consent by a state, the Eleventh Amendment bars

federal court suits for money damages against state officers in

their official capacities. See Kentucky v. Graham, 473 U.S. 159,

169 (1985).

Therefore, the Complaint will be dismissed with prejudice,

in its entirety as against defendants, the State of New Jersey

and the New Jersey State Unemployment Office, pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim. 

E. Preclusion Order

Alternatively, this Court concludes that this action should

be dismissed because it was filed in violation of this Court’s

September 1, 2009 All Writs Injunction Order. See Carter v. New

Jersey State, et al., Civil No. 09-3704 (FLW), Docket entry no.

6.

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CONCLUSION

For the reasons set forth above, this Court will dismiss

without prejudice Plaintiff’s Complaint, in its entirety, as

against defendants, Unemployment Supervisor “John” and the John

Doe Unemployment security officer(s), Governor Christie and New

Jersey Attorney General Dow, for failure to state a claim upon

which relief may be granted. Further, the Complaint will be

dismissed with prejudice, in its entirety as against defendants,

the State of New Jersey and the New Jersey State Unemployment

Office, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a claim. An appropriate Order accompanies this Opinion.

 S/Freda L. Wolfson 

FREDA L. WOLFSON 

United States District Judge

Dated: October 5, 2011 

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