John Marchisotto v. Margaret Goodzeit ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1870
__________
JOHN F. MARCHISOTTO,
individually and as Guardian,
of A.M., J.M., and M.M., minors,
Appellant
v.
MARGARET GOODZEIT, individually, and in her official capacity,
as Presiding Judge, Somerset County Chancery;
MR. FRANK BRUNO, individually, and in his official capacity,
as the Somerset County Surrogate; LOUIS P. LEPORE, Individually and,
the Law Offices of Louis Lepore P.C. and Louis Lepore, Esq., LLC.;
DEBRA E. CANOVA; THE STATE OF NEW JERSEY, New Jersey Courts,
Middlesex County Surrogate and County; ALBERTO RIVAS individually and
in his official capacity, as the administrative judge, Middlesex County Courthouse;
STAURT J. RABNER, individually , and his official capacity, as the Chief Justice
of the New Jersey State Courts; LAW OFFICE OF JOHN W. THATCHER LLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3:19-cv-12540)
District Judge: Honorable Brian R. Martinotti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2021
Before: MCKEE, SHWARTZ and RESTREPO, Circuit Judges
(Opinion filed: August 4, 2021)
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OPINION *
___________
PER CURIAM
John F. Marchisotto, proceeding pro se, appeals from an order of the United States
District Court for the District of New Jersey that, among other things, granted the
defendants’ motions to dismiss and denied his motion for a preliminary injunction. For
the following reasons, we will affirm.
In May 2019, Marchisotto filed a complaint pursuant to 42 U.S.C. § 1983, which
he later amended, seeking to challenge various aspects of an ongoing state court probate
matter involving his deceased father. He named as defendants Middlesex County,
Superior Court Judge Margaret Goodzeit, the Somerset County Surrogate (Frank Bruno),
the executrix of his father’s estate (Debra Canova), and her lawyer (Louis P. Lepore).
The defendants filed motions to dismiss. (ECF 44, 45, 69.) The District Court
consolidated the matter with a separate action that Marchisotto had filed in December
2019. (ECF 68.) The December 2019 complaint named some defendants from the
original action and added several new defendants, namely, the State of New Jersey,
Superior Court Judge Alberto Rivas, and New Jersey Supreme Court Justice Stuart
Rabner. The District Court identified those new parties as “consolidated defendants.”
By order entered April 22, 2020, the District Court granted the motions to dismiss
filed by Judge Goodzeit, and by Canova and Attorney Lepore. The District Court also
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
dismissed Marchisotto’s request to amend the complaint as to Bruno, denied
Marchisotto’s requests for preliminary injunctive relief, denied as moot Middlesex
County’s motion to dismiss, and affirmed a Magistrate Judge’s order of February 26,
2020. 1 The District Court explained its basis for these decisions during a telephone
conference. (Doc. 143.) In its order, the District Court advised Marchisotto that if he
“seeks to amend his Complaint to incorporate the parties and allegations from the
consolidated matter, he must file a motion seeking leave to do so no later than May 5,
2020.” If, instead, Marchisotto sought to appeal, the District Court directed him to
“notify the Court in writing of his intention to do so by May 5, 2020 prior to filing his
appeal.” Finally, the District Court stated that if Marchisotto “fails to seek leave to file
an Amended Complaint, the Court will dismiss the consolidated defendants from this
matter with prejudice.” (ECF 120.)
Marchisotto did not seek leave to file an amended complaint. Instead, he again
sought to appeal. 2 (ECF 121, 124.) After the May 5 deadline passed, two of the
defendant groups submitted letters asking the District Court to dismiss all claims against
1
The Magistrate Judge’s order administratively terminated Marchisotto’s motion for a
temporary restraining order against Judge Rivas and Chief Justice Rabner, denied a
motion for disqualification of Attorney Lepore, and struck two amended complaints.
(ECF 98.)
2
He also filed a motion to stay the District Court proceedings while his appeal proceeded
in this Court. (ECF 119.) The District Court denied that motion. (ECF 123.) Although
Marchisotto identified that order in his amended notice of appeal, he does not challenge
that decision in his opening brief. See Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d
120, 124 n.2 (3d Cir. 2020) (holding that claims were forfeited where appellant failed to
raise them in her opening brief).
3
all parties with prejudice. (ECF 126, 128.) The District Court entered an order on June
5, 2020, dismissing the consolidated defendants and denying as moot Marchisotto’s
request for leave to file a motion for a preliminary injunction and a temporary restraining
order. (ECF 130.) Marchisotto filed another amended notice of appeal. (ECF 131.)
We have jurisdiction pursuant to 28 U.S.C. § 1291. See Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992); see also Frederico v. Home Depot, 507 F.3d
188, 193 (3d Cir. 2007) (concluding that plaintiff stood on her complaint because she
filed a notice of appeal rather than amending within specified time period). We exercise
de novo review of orders granting motions to dismiss, see Davis v. Samuels, 962 F.3d
105, 111 n.2 (3d Cir. 2020), and we review for abuse of discretion the denial of a motion
to amend a complaint, see Winer Fam. Tr. v. Queen, 503 F.3d 319, 325 (3d Cir. 2007),
and the ultimate denial of a preliminary injunction, see Brown v. City of Pittsburgh, 586
F.3d 263, 268 (3d Cir. 2009). We may affirm on any ground supported by the record.
See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 469 (3d Cir. 2015).
The District Court properly granted Judge Goodzeit’s motion to dismiss.
Marchisotto challenged Judge Goodzeit’s actions in the state court probate proceedings,
vaguely alleging that she abused her authority, lacked impartiality, and engaged in
misconduct. A judge is immune from liability for all actions taken in her judicial
capacity, unless such action is taken in the “clear absence of all jurisdiction.” Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978). Marchisotto did not allege that Judge Goodzeit
was acting in a non-judicial capacity or in the complete absence of jurisdiction when she
ruled in the state court probate matter. See Figueroa v. Blackburn, 208 F.3d 435, 443-44
4
(3d Cir. 2000). Accordingly, the District Court properly granted Judge Goodzeit’s
motion to dismiss. 3
The District Court also did not err in granting the motion to dismiss filed by the
executrix, Canova, and her attorney, Lepore. To state a claim under § 1983, a plaintiff
“must establish that [he] was deprived of a federal constitutional or statutory right by a
state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Marchisotto alleged that
Canova and Attorney Lepore committed financial crimes, perjured themselves, and
signed false financial documents and tax returns. Notably, however, neither Canova nor
Attorney Lepore, by virtue of their roles in the probate proceedings, were acting under
the color of state law for purposes of § 1983. See Polk County. Dodson, 454 U.S. 312,
318 (1981) (stating that “a lawyer representing a client is not, by virtue of being an
officer of the court, a state actor ‘under color of state law’ within the meaning of
§ 1983”); cf. Leshko v. Servis, 423 F.3d 337, 339, 347 (3d Cir. 2005) (explaining that
private actors are state actors under § 1983 only where there is “such a close nexus
between the State and the challenged action that seemingly private behavior may be fairly
treated as that of the State itself”). Accordingly, the District Court properly dismissed the
claims that were brought against them and correctly found that further amendment of the
3
The District Court also properly dismissed as moot the motion to dismiss that was filed
by Middlesex County because it was not named in Marchisotto’s operative amended
complaint. Marchisotto’s motions for leave to file a preliminary injunction and a
temporary restraining order were also properly dismissed as moot when the District Court
dismissed the last remaining defendants with prejudice.
5
complaint would be futile. 4 See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d
Cir. 2002).
Finally, we conclude that there is no merit to Marchisotto’s challenge to the
District Court’s affirmance of the Magistrate Judge’s order of February 26, 2020. The
Magistrate Judge properly denied Marchisotto’s motion for disqualification of Attorney
Lepore because the allegations in that motion failed to demonstrate that Attorney Lepore
engaged in misconduct or improperly failed to carry professional liability insurance. 5 In
addition, the rejection of Marchisotto’s motion for a temporary restraining order was
proper. The motion essentially duplicated an earlier motion that the District Court had
rejected because it was unclear what kind of harm that Marchisotto would suffer, how the
harm would materialize, or why he was entitled to a temporary restraining order. 6 (ECF
4
Furthermore, we note that Marchisotto has not meaningfully challenged the District
Court’s conclusion that he failed to state a claim against Bruno, the Somerset County
Surrogate. See Hall, 969 F.3d at 124 n.2. Instead, Marchisotto merely suggests,
mistakenly, that the District Court lacked authority to dismiss the claims against Bruno
sua sponte. Appellant’s Br., 48; see 28 U.S.C. § 1915(e)(2)(B)(ii) (stating that
“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that … the action … fails
to state a claim on which relief may be granted”).
5
As the Magistrate Judge noted, Marchisotto’s claims were substantially similar to those
that he raised in a grievance filed with the Office of Attorney Ethics (OAE). (ECF 98, at
6-8.) The OAE thoroughly investigated Marchisotto’s allegations, issuing a lengthy
report explaining that Attorney Lepore, as a sole practitioner, did not need to maintain
professional liability insurance and that the evidence failed to establish that he engaged in
any misconduct. (ECF 82-1.)
6
For essentially the same reasons, the District Court correctly denied Marchisotto’s
requests for preliminary injunctive relief.
6
98, at 12-14.) Marchisotto also complains that the Magistrate Judge improperly struck
his second and third amended complaints. The District Court was sympathetic to this
argument, however, granting Marchisotto an opportunity to amend his complaint “to
incorporate the parties and allegations from the consolidated matter” by May 5, 2020.
(ECF 120, at 2.) As noted above, Marchisotto failed to do so; instead, he again sought to
appeal. (ECF 121, 124.) We conclude that, under these circumstances, the District Court
did not abuse its discretion.
For the foregoing reasons, we will affirm the District Court’s judgment. 7
7
Marchisotto’s “Motion for Leave to Exceed Brief Page and Word Count” (Doc. 71), his
“Motion to Lodge Exhibits” (Doc. 81), and his “Motion to Lodge Exhibits, with
Testimony Evidence, and Documentary Evidence” (Doc. 84), are granted. We deny his
motions to disqualify opposing counsel (Docs. 16, 25, 60), including his motion to
dismiss the Law Office of John W. Thatcher as a party to the appeal (Doc. 92), his
motions to recuse Judge Rivas (Docs. 30, 31), and his requests to dismiss an order issued
by the Superior Court (Ocean County) (Doc. 162, 163, 164). To the extent that
Marchisotto’s numerous letters and other documents filed in this Court seek any other
relief, his requests are denied.
7