Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2005

Mierzwa v. Garfield
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2069




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Recommended Citation
"Mierzwa v. Garfield" (2005). 2005 Decisions. Paper 378.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/378


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                                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 05-2069
                           ________________

             EDWARD J. MIERZWA; PATRICIA A. MIERZWA,
                                     Appellants

                                     v.

   CITY OF GARFIELD; GRUBER & COLABELLA PC; HEADLANDS MORTGAGE
  COMPANY; GLEN MATTIE; ROSE ANNE MERENDINO; THOMAS J. MIERZWA;
     JANE MIERZWA; TODD MOSBY; PETERPAUL, CLARK & CORCORAN PC;
     RONALD SCHWARTZ, Esq.; ROBERT SHIKHMAN; SAULIUS SHIKHMAN;
      TRACI SHIKHMAN; JOHN DOE INSURANCE COMPANY; STATE FARM
    INSURANCE COMPANY; ESTATE OF JACOB TELESH; VALLEY NATIONAL
      BANK; JAMES B. ZANGARA; UNITED STATES OF AMERICA; STATE OF
                             NEW JERSEY
                 ____________________________________

              On Appeal From the United States District Court
                       For the District of New Jersey
                       (D.C. Civ. No. 04-cv-00721)
                District Judge: Honorable John W. Bissell


                Submitted Under Third Circuit LAR 34.1(a)
                            October 11, 2005

         Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                         (Filed October 19, 2005)


                       _______________________

                                OPINION


PER CURIAM
       Edward and Patricia Mierzwa (“Mierzwas”), pro se litigants, appeal an adverse

judgment entered in the United States District Court for the District of New Jersey on

their claims brought pursuant to 42 U.S.C. § 1983 and under state tort law. Finding no

error, we affirm.

                                             I.

       The pertinent facts, which are undisputed, are as follows. In 2002, defendant

Thomas Mierzwa assaulted his brother, Edward Mierzwa. The police from the City of

Garfield, New Jersey, responded to the incident, investigated, prepared an incident report,

and as a result, filed a criminal complaint against Thomas. While the complaint was

pending, Edward requested that the Bergen County Prosecutor indict Thomas for

aggravated assault, but the request was denied. Edward then requested that the Garfield

Municipal Court permit him to file a private citizen complaint against Thomas, but that

request was also denied. Thereafter, Edward filed an untimely Tort Claim Notice with

the New Jersey Attorney General citing the state judiciary’s alleged improprieties in

handling the Municipal Court complaint. The Mierzwas then filed this action in the

District Court raising claims under state and federal law against numerous defendants,

including allegations that various federal judges signed “frivolous” orders in a separate

civil action.

        As to the defendants against whom the Mierzwas did not raise a § 1983 claim, the

District Court found that it lacked subject matter jurisdiction, and dismissed the claims.

The District Court also found that the claim against the United States was solely based
upon orders signed by federal judges, who are entitled to absolute immunity. Thus, the

District Court also dismissed those claims, but permitted the Mierzwas’ claims against the

remainder of the defendants predicated upon § 1983 to proceed. After the District Court

denied the Mierzwas’ motion for reconsideration, the City of Garfield and several of its

employees (collectively, “Garfield defendants”) filed motions to dismiss, or in the

alternative, for summary judgment, and the State of New Jersey (“State”) filed a motion

to dismiss.

       The District Court found that because a two-year statute of limitations applies to

the Mierzwas’ § 1983 claims, all events that occurred before February 19, 2002 are not

cognizable. The District Court also found that the Mierzwas’ tort claims against the

Garfield defendants lack merit as they did not comply with the Notice of Claim provision

under the New Jersey Tort Claims Act. The Court next found that the due process claims

against the Garfield defendants lack merit as the discretionary decision whether to pursue

a criminal complaint rests with the prosecuting attorney. The District Court found as well

that the tort claims against the State lack merit as the Mierzwas’ Notice of Claim was

both vague and untimely. Finally, the Court found that because the State is immune from

liability under § 1983, the Mierzwas’ due process claim lacks merit. Therefore, the

District Court granted the State’s motion to dismiss and the Garfield defendants’ motion

for summary judgment. The Mierzwas filed a motion for reconsideration, which was
denied. This appeal followed.1

                                             II.

       The Mierzwas make no substantive arguments on appeal, but assert generally that

the District Court’s decision should be reversed. Br. at 8. Nevertheless, we have

carefully reviewed the record and find no basis to disturb the District Court’s judgment.

We first consider the District Court’s dismissal for lack of subject matter jurisdiction.

The claims against the following defendants either did not present a federal question or

were unrelated to the § 1983 claims: Gruber and Colabella; Thomas Mierzwa; Jane

Mierzwa; Peterpaul, Clark, and Corcoran, P.C.; Ronald Schwartz, Esq.; Robert

Skikhman; Saulius Skikhman; Traci Skikhman; Estate of Telesh; and Valley National

Bank. See 28 U.S.C. §§ 1331, 1367. In addition, complete diversity of citizenship was

absent. See 28 U.S.C. § 1332. Therefore, the District Court properly dismissed the

claims against the above defendants. See 28 U.S.C. § 1367.

       To the extent the Mierzwas sued the United States, they are barred from doing so

under the doctrine of sovereign immunity. See FDIC v. Meyer, 

, 475 (1994).

Insofar as the Mierzwas raised a claim against federal judges based upon orders they

issued in their judicial capacity, the judges enjoy absolute immunity from damages

liability in a § 1983 action for such acts. See Dennis v. Sparks, 

, 27 (1980).


       1
        We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s determination of law that it lacks subject matter jurisdiction.
Bakhtriger v. Elwood, 

, 417 (3d Cir. 2004). We also exercise plenary review
over the District Court’s decision to grant summary judgment and will use the same test
as below. Belitskus v. Pizzingrilli, 

, 639 (3d Cir. 2003).
       As to the state tort law claims against the Garfield defendants, the record reflects

that the Mierzwas did not file a timely Notice of Claim in accordance with the New Jersey

Tort Claims Act. See N.J. Stat. Ann. § 59:8-8, 59:8-8(a). In addition, the individual

Garfield defendants (police and prosecutor) enjoy qualified immunity as their conduct in

investigating the incident between Edward and Thomas did not violate clearly established

constitutional rights of which a reasonable person would have known. See Harlow v.

Fitzgerald, 

, 818 (1982). Therefore, the District Court properly granted

summary judgment in favor of the Garfield defendants.

       As to the remaining state tort law claim that the ambulance was unduly delayed in

transporting Edward to the hospital for emergency care on the day he was assaulted, the

record indicates that the Mierzwas filed a Notice of Claim well beyond the ninety-day

statutory period. See N.J. Stat. Ann. § 59:8-8(a). Therefore, the District Court properly

dismissed this claim. Finally, the Mierzwas’ § 1983 claims against the State were

properly dismissed as the State is immune from liability under this section. See Will v.

Mich. Dep’t of State Police, 

, 71 (1989).

                                             III.

       For the foregoing reasons, we affirm the District Court’s judgment.