Assem Abulkhair v. Menelaos Toskos

ALD-184 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1596
___________
ASSEM A. ABULKHAIR,
Appellant
v.
MENELAOS W. TOSKOS; WILLIAM T. SMITH; HOOK SMITH & MEYER
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No.10-cv-01820)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 12, 2011
Before: SCIRICA, HARDIMAN AND VANASKIE, Circuit Judges
(Opinion filed: June 2, 2011)
_________
OPINION
_________
PER CURIAM
Assem Abulkhair appeals from the order of the United States District Court for the
District of New Jersey dismissing his complaint. We will affirm.
Because the District Court‟s opinion contains a summary of the proceedings, our
description here will be brief. In April 2010, Abulkhair commenced a civil action in
District Court by filing a complaint against New Jersey Superior Court Judge Menelaos
Toskos, William Smith, Esquire, and the law firm of Hook, Smith & Meyer (“Smith‟s
law firm”). He asserted federal question jurisdiction under 42 U.S.C. § 1983 and
28 U.S.C. § 455. The District Court granted Abulkhair‟s application to proceed in forma
pauperis and screened the complaint pursuant to 28 U.S.C. § 1915. The District Court
dismissed the complaint without prejudice to the filing of an amended complaint, noting
that Abulkhair alleged the exhaustion of state remedies when the New Jersey Supreme
Court considered his claims and that the matter thus appeared to be barred by the Rooker-
Feldman doctrine.1
Abulkhair filed an amended complaint and supporting documents, again stating
that the action arose under 42 U.S.C. § 1983 and 28 U.S.C. § 455. Abulkhair alleged that
he retained Smith and Smith‟s law firm to represent him in a lawsuit, and that he paid
certain sums of money during the litigation. Eventually, in 2006, Abulkhair sued Smith
and Smith‟s law firm in state court to obtain a refund of money he believes is owed to
him. Abulkhair contended that the defendants failed to appear for a court date in that
matter, and the assigned judge entered a default. However, as Abulkhair was leaving the
courtroom, Smith arrived, took the court jacket from the clerk, and led Abulkhair to
Judge Toskos‟s courtroom. Abulkhair alleged that it “became obvious . . . that Defendant
1
The doctrine is named for Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). It applies
to “cases brought by state-court losers” seeking the district court‟s review and rejection
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Toskos is the chosen Judge and his election and selection by the defendants cannot be
made by a coincidence.” (Amended Complaint ¶21.) Abulkhair‟s complaint described
several events and rulings during the proceedings against Smith and Smith‟s law firm,
including a ruling by Judge Toskos that was ultimately reversed on appeal in 2007, as
well as the denial of his motion to recuse. Abulkhair then alleged that, after “relentless
research,” he discovered that Judge Toskos is a former partner of a law firm that
represented an opposing party in another one of Abulkhair‟s pending lawsuits. Abulkhair
states that the defendants deliberately hid “their improper conduct, involvement and
clandestine relations in order for them to pass their well-done plan upon Abulkhair and
the judiciary in particular to deprive Abulkhair of his absolute right to recoup the
unearned money from Defendant Smith and his Firm.” (Id. ¶28.) Abulkhair thus alleged
that Smith and Smith‟s law firm conspired with Judge Toskos to deprive Abulkhair of his
constitutional rights under section 1983 and rights under section 455 and N.J. Rule 1:12.
He also alleged a state law tort claim of negligent infliction of emotional distress.
By order entered March 1, 2011, the District Court dismissed the complaint. In
the accompanying opinion, the District Court reviewed the complaint under 28 U.S.C.
§ 1915(e)(2). The District Court determined that Abulkhair‟s claims against Smith and
Smith‟s law firm were barred by the Rooker-Feldman doctrine, noting that Abulkhair
sought to reverse the same claims already litigated in state court. Also, the District Court
of state court judgments that were rendered before the district court case commenced.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
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determined that, even if the claims were not barred under Rooker-Feldman, Abulkhair
failed to state a claim under any of the legal bases asserted, and that the claims fail for
lack of subject matter jurisdiction. Specifically, the District Court concluded that the
section 1983 claims against Judge Toskos are barred on the basis of judicial immunity,
and that the allegations were insufficient to state a claim under 28 U.S.C. § 455 and N.J.
Court Rule 1:12. Further, the District Court found that Abulkhair‟s complaint did not
allege sufficient facts to raise an inference that Smith and Smith‟s law firm engaged in a
conspiracy with Judge Toskos that would subject them, as non-state actors, to section
1983 liability. Moreover, the District Court determined that Abulkhair‟s allegations
failed to state a claim for negligent infliction of emotional distress.
Abulkhair appeals. Our Clerk advised him that his appeal was subject to summary
action under Third Cir. LAR 27.4 and I.O.P. 10.6. Abulkhair has submitted argument in
support of his appeal. We exercise plenary review over the District Court‟s dismissal of
the complaint. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). When
reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same standard
provided for in Federal Rule of Civil Procedure 12(b)(6). See id. Thus, we are required
to “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008) (review of a Rule 12(b)(6) dismissal) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
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We first address the issue of Judge Toskos‟s judicial immunity. Claims for money
damages against judicial defendants are barred by the doctrine of absolute judicial
immunity.2 “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.‟” Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978) (citation omitted). Indeed, the doctrine of
judicial immunity applies even to allegations of malice or corruption, and section 1983
did not abolish the well-settled principle of judicial immunity. See Pierson v. Ray,
386 U.S. 547, 554 (1967), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S.
800 (1982). None of Judge Toskos‟s actions at issue in the complaint were taken outside
of his judicial capacity as a judge of the New Jersey Superior Court. Although Abulkhair
alleged that Judge Toskos plotted with Smith to have the state court case assigned to him,
Judge Toskos‟s rulings and other actions in the case are not extra-judicial in nature.
Further, Abulkhair has not shown a basis for granting injunctive relief as to Judge
Toskos. See 42 U.S.C. § 1983; Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006).
Moreover, we affirm the District Court‟s dismissal of Abulkhair‟s claim against
Judge Toskos under 28 U.S.C. § 455. Section 455 concerns the disqualification of a
“justice, judge, or magistrate judge of the United States,” which refers to members of the
federal judiciary. See also 28 U.S.C. § 451. We agree with the District Court‟s
2
Abulkhair‟s argument that it was Judge Toskos‟s burden to plead qualified
immunity as a defense is inapposite to the analysis of absolute judicial immunity.
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conclusion that Abulkhair failed to state a claim under section 455, and section 455 does
not provide a basis for federal court jurisdiction over his complaint against Judge Toskos.
We now turn to Abulkhair‟s claims against Smith and Smith‟s law firm. In his
submission to this Court, Abulkhair does not dispute that these defendants are not state
actors, but he argues that they engaged in a conspiracy with Judge Toskos to deprive
Abulkhair of his constitutional rights, thus subjecting them to section 1983 liability. See
Tower v. Glover, 467 U.S. 914 (1984). In support of his argument that the District Court
erred in concluding that the complaint did not allege facts sufficient to raise an inference
of such a conspiracy, Abulkhair refers to the allegations contained in paragraphs 32, 33,
and 34 of his complaint. Appellant‟s Response dated Mar. 31, 2011 at 5-6. However,
these three paragraphs of the complaint allege in conclusory fashion that the actions of
Judge Toskos, Smith, and Smith‟s law firm “were intentionally done under color of state
law,” and that “[t]he fake default” in state court before the previously-assigned judge
could not have occurred without a specific plan, and that there was in fact “an
orchestrated well-done plot” by the defendants to take over the case and deprive
Abulkhair of his constitutional rights. As stated earlier, in our review of the District
Court‟s dismissal for failure to state a claim, we apply the Rule 12(b)(6) standard.
Abulkhair appears to contend that the District Court should have allowed him to pursue
discovery to obtain sufficient facts for his conspiracy allegations, but conversely, the
Rule 12(b)(6) standard requires that a plaintiff allege in his complaint sufficient facts to
raise a reasonable expectation that discovery will reveal evidence of the essential
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elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007)). A formulaic recitation of the elements does not suffice; evaluating the complaint
with the assumption that all of the factual allegations are true, the facts alleged must go
beyond merely creating a suspicion of a legally cognizable right of action.
Id. at 555. Upon consideration of paragraphs 32-34 of the amended complaint with the
complaint‟s other allegations, we conclude that Abulkhair‟s allegations of a conspiracy
among the defendants is based on suspicion and speculation concerning the reassignment
of his state court case to Judge Toskos. We agree with the District Court that Abulkhair‟s
complaint falls short of sufficiently alleging conspiratorial conduct by the defendants for
purposes of section 1983 liability of Smith and Smith‟s law firm.
In sum, we agree with the District Court‟s conclusion that Abulkhair failed to state
a claim for the asserted bases of federal jurisdiction. We will affirm the District Court‟s
order because this appeal does not present a substantial question. See 3d Cir. LAR 27.4.
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