Assem Abulkhair v. Jeanette Page-Hawkins ( 2011 )


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  •                                                                NOT PRECEDENTIAL
    
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________
    
                                         No. 11-2341
                                         ___________
    
                                  ASSEM A. ABULKHAIR,
                                                  Appellant
    
                                               v.
    
                 JEANETTE PAGE-HAWKINS; STATE OF NEW JERSEY;
                   PASSAIC COUNTY BOARD OF SOCIAL SERVICES
                       ____________________________________
    
                        On Appeal from the United States District Court
                                 for the District of New Jersey
                            (D.C. Civil Action No. 10-cv-02368)
                          District Judge: Honorable Jose L. Linares
                         ____________________________________
    
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     October 14, 2011
    
                  Before: SCIRICA, SMITH and VANASKIE, Circuit Judges
    
                               (Opinion filed: October 18, 2011)
    
                                         ___________
    
                                          OPINION
                                         ___________
    
    PER CURIAM
    
          Assem A. Abulkhair appeals pro se from the District Court’s entry of summary
    
    judgment in favor of the defendants. We will affirm.
    
                                               I.
          From 2002 through 2004, Abulkhair received interim welfare benefits through the
    
    Passaic County Board of Social Services (“the Board”) pending his application for
    
    federal Supplemental Security Income. The Social Security Administration granted the
    
    application in 2004 but withheld $3,407 from its award to reimburse the Board for what it
    
    had paid. Abulkhair filed a state administrative appeal, arguing that the reimbursement
    
    was unauthorized and that the Board instead owed him compensation for his community
    
    work. He also argued that the Board should have made higher monthly payments.
    
          Abulkhair’s appeal initially was assigned to a New Jersey Administrative Law
    
    Judge (“ALJ”). Jeannette Page-Hawkins, who was then the Director of the New Jersey
    
    Department of Human Services Division of Family Development, later withdrew the
    
    appeal from the ALJ and reviewed it herself. Page-Hawkins rejected Abulkhair’s claims
    
    and upheld the reimbursement on October 20, 2005. Abulkhair appealed to the New
    
    Jersey Superior Court, Appellate Division. He raised his underlying claims and also
    
    argued that Page-Hawkins wrongfully withdrew the case from the ALJ. The Appellate
    
    Division affirmed on March 23, 2007. Abulkhair unsuccessfully sought review by the
    
    New Jersey and United States Supreme Courts.
    
          Abulkhair then filed suit in New Jersey state court against the Board and the State
    
    of New Jersey, repeating his claims and asserting that defendants’ alleged conduct
    
    “violated the Federal and State Minimum Wage Statutes” and “the State and Federal
    
    Discrimination Statutes together with his constitutional rights.” (Docket No. 30-2 at 67
    
    ¶¶ 17-18.) He did not name Page-Hawkins as a defendant or include any allegations
                                                2
    about her. The Trial Division concluded that Abulkhair’s complaint was barred by his
    
    agency appeal, the Appellate Division affirmed, and Abulkhair again unsuccessfully
    
    sought discretionary review.
    
           Finally, Abulkhair filed the federal complaint at issue here. He named the Board,
    
    the State and Page-Hawkins as defendants and asserted his same underlying claims,
    
    which he now purports to bring under different federal statutes. He also alleged that
    
    Page-Hawkins denied him due process by removing his administrative appeal from the
    
    ALJ. The Board never responded to the complaint, and Abulkhair filed a motion for
    
    default judgment against it. The State and Page-Hawkins filed a motion to dismiss or for
    
    summary judgment, arguing that the complaint is barred by res judicata and New Jersey’s
    
    related entire controversy doctrine. They also argued that the complaint is barred for
    
    other reasons, including the Rooker-Feldman doctrine and the statute of limitations.
    
           The District Court notified the parties of its intention to treat the motion as one for
    
    summary judgment and allowed them to submit additional evidence. They declined to do
    
    so, and the court entered summary judgment in favor of all defendants on May 10, 2011.
    
    The court rejected defendants’ Rooker-Feldman argument but agreed that the complaint
    
    is barred by res judicata and the entire controversy doctrine. It also denied Abulkhair’s
    
    motion for a default judgment against the Board as moot. Abulkhair appeals.1
    
    
    1
      We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s entry
    of summary judgment is plenary. See Shook v. Avaya Inc., 
    625 F.3d 69
    , 72 (3d Cir.
    2010). We may affirm the District Court’s judgment on any ground supported by the
    record. See id. We review the District Court’s denial of a motion for a default judgment
                                                  3
                                                 II.
    
           Abulkhair frames his arguments in terms of the Rooker-Feldman doctrine, which
    
    the District Court did not apply, but the primary issue on appeal is the preclusion of his
    
    claims. The Full Faith and Credit Act requires federal courts to give state court
    
    judgments the same preclusive effect that the state courts would give them. See 28
    
    U.S.C. § 1738; Del. River Port Auth. v. Fraternal Order of Police, 
    290 F.3d 567
    , 572-73
    
    (3d Cir. 2002).
    
           In this case, the District Court concluded that all of Abulkhair’s claims are barred
    
    by res judicata and the entire controversy doctrine. We agree that all of his claims
    
    against the Board and the State, which Abulkhair named as defendants in his state court
    
    complaint, are barred by those doctrines under New Jersey law. See Jones v. Holvey, 
    29 F.3d 828
    , 830 (3d Cir. 1994). Indeed, the New Jersey courts themselves already have so
    
    held. Such claims remain barred despite Abulkhair’s invocation of different statutes
    
    because his new legal theories do not change the nature of his underlying claims. See
    
    DiTrolio v. Antiles, 
    662 A.2d 494
    , 504 (N.J. 1995).
    
           The District Court, however, did not mention or apply preclusion principles to
    
    Abulkhair’s claim that Page-Hawkins denied him due process by removing his agency
    
    appeal from the ALJ and deciding it herself. Abulkhair did not assert that claim or name
    
    Page-Hawkins as a defendant in his state-court complaint, and the New Jersey courts thus
    
    did not address the claim in that context. The District Court did not discuss whether
    
    
    for abuse of discretion. See Chamberlain v. Giampapa, 
    210 F.3d 154
    , 164 (3d Cir. 2000).
                                                 4
    Abulkhair’s state-court complaint nevertheless triggers res judicata or the entire
    
    controversy doctrine as to that claim, and we question whether it does.2
    
           The District Court also did not discuss whether Abulkhair’s agency appeal triggers
    
    those doctrines, and we question that point as well. Abulkhair argued in that appeal that
    
    Page-Hawkins improperly removed his case from the ALJ, and the Appellate Division
    
    rejected his argument as follows: “Plaintiff argues that the matter was improperly
    
    removed from [the ALJ] based on the D[ivision of Family Development]’s fear of an
    
    adverse ruling. We reject this claim.” (Docket No. 30-2 at 30 & n.1.)3 This ruling does
    
    not necessarily preclude Abulkhair’s federal due process claim. We held in a similar case
    
    that a prior New Jersey agency appeal did not preclude such a claim because, “[b]ased on
    
    our review of New Jersey cases, we predict that a New Jersey appellate court faced with
    
    
    2
      Res judicata generally applies to parties in privity with those named in a prior action
    and to claims that were not but could have been asserted in that action. See Holvey, 29
    F.3d at 830. Even if Page-Hawkins is in privity with the State in her official capacity,
    however, and even if Abulkhair’s claim that she denied him due process is sufficiently
    related to his underlying claims for res judicata and entire controversy purposes (which is
    questionable, see id.), those doctrines may not apply to his claim against her in her
    individual capacity. Cf. Gregory v. Chehi, 
    843 F.2d 111
    , 120-21 (3d Cir. 1988) (so
    concluding under Pennsylvania law). In addition, the entire controversy doctrine requires
    the joinder of related claims but not related parties. See Kent Motor Cars, Inc. v.
    Reynolds & Reynolds, Co., — A.3d —, Nos. A-102/103 September Term 2009, 
    2011 WL 1991155
    , at *8 (N.J. May 18, 2011); Paramount Aviation Corp. v. Agusta, 
    178 F.3d 132
    , 135 n.1 (3d Cir. 1999).
    3
      The defendants have not argued that this ruling bars the claim as a matter of collateral
    estoppel/issue preclusion (as opposed to res judicata or the entire controversy doctrine),
    and the District Court did not address that issue. See Caver v. City of Trenton, 
    420 F.3d 243
    , 259 (3d Cir. 2005) (explaining that collateral estoppel under New Jersey law
    requires, inter alia, prior litigation of the identical issue).
                                                 5
    [a] section 1983 claim at the time that it was evaluating [an administrative] appeal . . .
    
    would not exercise original jurisdiction” to decide that claim. Holvey, 29 F.3d at 832.
    
    Neither the District Court nor defendants have addressed that decision.
    
           It is not necessary for us to resolve these issues or remand for the District Court to
    
    do so, however. As Defendants argue, Abulkhair’s § 1983 claim against Page-Hawkins
    
    is barred by the statute of limitations. The applicable statute is New Jersey’s two-year
    
    statute of limitations for personal injury actions. See Dique v. N.J. State Police, 
    603 F.3d 181
    , 185 (3d Cir. 2010). In this case, Page-Hawkins decided Abulkhair’s administrative
    
    appeal on October 20, 2005. (Docket No. 30-2 at 24-26.) Abulkhair was aware of any
    
    claim in that regard at least by November 2, 2005, when he argued to the Appellate
    
    Division that Page-Hawkins’s removal of the appeal from the ALJ was improper. (Id. at
    
    27-28.) The Appellate Division rejected that argument on March 23, 2007. (Id. at 29-
    
    30.) Even using that date as the date of accrual, the two-year statute of limitations had
    
    long expired when Abulkhair filed his federal complaint on May 7, 2010. Page-Hawkins
    
    moved for summary judgment on statute of limitations grounds and Abulkhair submitted
    
    nothing calling its application into question. Thus, there is no doubt that this claim is
    
    barred by the statute of limitations.
    
           Abulkhair raises several arguments that require some additional discussion. First,
    
    he argues that the District Court should have granted his motion for a default judgment
    
    against the Board instead of granting summary judgment in its favor because the Board
    
    itself never moved for summary judgment or otherwise responded to his complaint. We
                                                  6
    reject that argument. The District Court’s entry of summary judgment as to the Board is
    
    properly construed as the entry of summary judgment sua sponte. Such an entry is
    
    permissible when the District Court provides notice of its intention to entertain summary
    
    judgment and an opportunity to respond. See Couden v. Duffy, 
    446 F.3d 483
    , 500 (3d
    
    Cir. 2006). The District Court provided such notice and opportunity here. The fact that
    
    the Board itself did not move for summary judgment is of no moment because the other
    
    defendants moved for summary judgment on the grounds discussed above and they apply
    
    equally to the Board. See id. In light of the Board’s meritorious defense, the District
    
    Court also did not abuse its discretion in denying Abulkhair’s motion for a default
    
    judgment. See Chamberlain, 210 F.3d at 164.
    
           Second, Abulkhair argues that the record was not adequately developed to apply
    
    preclusion principles. He notes the District Court’s statement that defendants had not
    
    submitted a copy of his state-court complaint. (Docket No. 40 at 3.) Defendants,
    
    however, in fact submitted a copy (Docket No. 30-2 at 65-68), and we have reviewed it
    
    as part of our plenary review. Abulkhair also asserts that defendants failed to properly
    
    certify their state-court documents by affidavit. Abulkhair does not claim that the
    
    documents are not authentic, however, and we see no basis to question their authenticity.
    
           Third, Abulkhair argues that the District Court overlooked his summary judgment
    
    response because, although he submitted one (Docket No. 35), the District Court stated
    
    that “Plaintiff has failed to file any substantive opposition to Defendants’ motion[.]”
    
    (Docket No. 40 at 2.) The District Court, however, clearly was referring to Abulkhair’s
                                                 7
    failure to submit an additional substantive response after it notified the parties that it
    
    would treat defendants’ motion as one for summary judgment. In any event, we have
    
    reviewed the record de novo, and Abulkhair submitted nothing raising a genuine issue of
    
    material fact.
    
             Finally, Abulkhair argues at length that he did not sign an agreement authorizing
    
    the Board’s recoupment and that the state court finding to the contrary is an
    
    “unreasonable determination of the facts” within the meaning of the federal habeas
    
    corpus statute, 28 U.S.C. § 2254(d)(2). The habeas statute has no application in this
    
    context, however, and Abulkhair may not relitigate this claim for the reasons explained
    
    above.
    
             For these reasons, we will affirm the District Court’s judgment.
    
    
    
    
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