2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2010

Cholo Dongon v. Donna Banar

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3418

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BLD-055 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3418

___________

CHOLO DONGON, 

Immigrant Green Card Holder, 

Permanent Resident of Hudson County, Jersey City, N.J.,

Appellant

v.

DONNA BANAR, A Permanent Resident Of The Philippines, Never Before The N.J.

Superior Court Hudson County, Nor Ever Ever In The United States;

N.J. SUPERIOR COURT, Hudson County; MAUREEN MANTINEO, Presiding Judge; 

JUDGE SEVERIANO LISBOA; NEW JERSEY ADMINISTRATIVE OFFICE OF THE

COURTS; N.J. FAMILY SUPPORT, Division Of Trenton, New Jersey; 

N.J. SUPERIOR COURT, Appellate Division; JUDGE JOSEPH F. LISA, P.J.A.D.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-08-cv-05331)

District Judge: Honorable Faith S. Hochberg

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

November 25, 2009

Before: MCKEE, RENDELL and CHAGARES, Circuit Judges

(Opinion filed: January 25, 2010)

_________

OPINION

_________
 The District Court did not address Appellees’ argument that Dongon’s complaint 1

is barred by the Rooker-Feldman doctrine and because of the domestic relations exception

to federal jurisdiction.

2

PER CURIAM

Cholo Dongon appeals pro se from a District Court order dismissing his action. 

For substantially the same reasons, we will affirm.

In October 2008, Dongon filed a complaint in which he moved for damages and a

protective order against various courts and judges in the state of New Jersey, who he

believed had denied him due process of law and committed fraud against him. Dongon’s

claims stem from an underlying family matter in which the state court imposed and

affirmed a child support obligation on him as a New Jersey resident. Dongon argued that

the actions taken by the state courts and judges violated his constitutional rights, were

without jurisdiction, and requested that the federal court intervene. He also named Donna

Banar, a private citizen, in his suit.

Appellees filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and argued

that Dongon’s complaint revealed no allegations of fact or legal theory that would support

any of the claims asserted against the defendants. The District Court agreed, finding that

Dongon’s claims for rulings issued by judges and courts in underlying family matters in

state court were barred by absolute judicial immunity, quasi-judicial immunity, and

Eleventh Amendment immunity. In addition, the District Court ruled that because one 1
3

defendant is a private citizen and not a state actor, she cannot be subject to liability under

42 U.S.C. § 1983. Dongon timely appealed.

We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if

Dongon’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir.

I.O.P. 10.6. Our review is plenary. See Miller v. Fortis Benefits Ins. Co., 475 F.3d 516,

519 (3d Cir. 2007). Dismissal is proper if a party fails to allege sufficient factual matter,

which if accepted as true, could “state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). 

Dongon’s action was properly dismissed because he cannot receive the relief he

requests. He cannot sustain a claim against Judges Mantineo, Lisboa, and Lisa because

judges are entitled to absolute immunity from liability based on actions taken in their

official judicial capacity. Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (citing Pierson v.

Ray, 386 U.S. 547, 554 (1967)); Mireles v. Waco, 502 U.S. 9, 11 (1991). Dongon’s

allegations that these judges committed “willful fraud” are unsupported, and his

disagreement with the judges’ rulings do not provide a basis for relief. 

Similarly, Dongon’s claims against New Jersey Family Support Division; the

Superior Court of New Jersey; New Jersey Administrative Office of Courts; and the

Superior Court of New Jersey, Appellate Division were properly dismissed. Dongon does

not allege any specific action by these entities. Even if he did, any actions taken by those
4

charged with the responsibility of carrying out a court’s order would be barred by the

doctrine of absolute quasi-judicial immunity. See Gallas v. Supreme Court of

Pennsylvania, 211 F.3d 760, 772-73 (3d Cir. 2000). Alternatively, the state courts, its

employees, and the judges are entitled to immunity under the Eleventh Amendment

because they are part of the judicial branch of the state of New Jersey, and therefore

considered “arms” of the state. See Johnson v. State of N.J., 869 F. Supp. 289, 296-98

(D.N.J. 1994). 

Moreover, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege a

violation of a right secured by the Constitution or laws of the United States, and that the

alleged deprivation was committed by a “person” acting under color of state law. West v.

Atkins, 487 U.S. 42, 48 (1988). Neither the named judges nor the courts or its employees

are “persons” subject to liability under § 1983. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989). The remaining defendant, Donna Banar, is a private citizen and

not a state actor, and therefore cannot be subject to liability under § 1983. We also

conclude that Dongon’s general allegations that his constitutional rights were violated fail

to state a claim for relief. To the extent that errors of state law have occurred, even if

true, these claims do not amount to a denial of due process warranting federal court

intervention. See Gryger v. Burke, 334 U.S. 728, 731 (1948); Engle v. Isaac, 456 U.S.

107, 121 & n.21 (1982). 

Although the District Court did not address whether Dongon’s complaint can be
5

construed as a request for injunctive relief, even if it were, the Younger abstention

doctrine applies. The Supreme Court has articulated a longstanding public policy against

federal court interference with state court proceedings and instructs federal courts to

refrain from taking any action in cases where the federal plaintiff has or had adequate

redress in state proceedings. Younger v. Harris, 401 U.S. 37, 43 (1971). Because it

appears that state court proceedings are pending or ongoing in Dongon’s child support

matter, it would be inappropriate for this Court to interfere with the state’s interest in

administering its own family court. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d

181, 192 (3d Cir. 2006). 

Accordingly, because dismissal was proper and because the appeal presents no

substantial question, we will summarily affirm the District Court judgment. Appellant’s

remaining motions are denied as moot.