Filed: Sep. 16, 2020
Latest Update: Sep. 16, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-3607 _ WILSON K. BAQUERO, Appellant v. JENNIFER MENDOZA; FLORIDA DEPARTMENT OF REVENUE; CHRISTINE TARDIF, Senior Probation Officer; JUDGE ARTHUR M. BIRKEN; KONSTANTIN FELDMAN; JUDGE LINDA MALLOZZI; JUDGE THOMAS K. ISENHOUR _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 18-cv-15081) District Judge: Honorable Kevin McNulty _ Submitted Pursuant to Third Circuit LAR
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-3607 _ WILSON K. BAQUERO, Appellant v. JENNIFER MENDOZA; FLORIDA DEPARTMENT OF REVENUE; CHRISTINE TARDIF, Senior Probation Officer; JUDGE ARTHUR M. BIRKEN; KONSTANTIN FELDMAN; JUDGE LINDA MALLOZZI; JUDGE THOMAS K. ISENHOUR _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 18-cv-15081) District Judge: Honorable Kevin McNulty _ Submitted Pursuant to Third Circuit LAR ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3607
__________
WILSON K. BAQUERO,
Appellant
v.
JENNIFER MENDOZA; FLORIDA DEPARTMENT OF REVENUE;
CHRISTINE TARDIF, Senior Probation Officer;
JUDGE ARTHUR M. BIRKEN; KONSTANTIN FELDMAN;
JUDGE LINDA MALLOZZI; JUDGE THOMAS K. ISENHOUR
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 18-cv-15081)
District Judge: Honorable Kevin McNulty
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 24, 2020
Before: JORDAN, BIBAS, and PHIPPS, Circuit Judges
(Opinion filed: September 16, 2020)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Wilson K. Baquero appeals the order of the United States District Court for the
District of New Jersey granting the appellees’ motions to dismiss his complaint. We will
affirm.
Because the parties are familiar with the proceedings and the record, we will not
recount all of the details here. To summarize, Baquero’s complaint relates to state court
rulings in Florida and New Jersey concerning his child support obligations. Judge Arthur
M. Birken presided over the child support case in Broward County, Florida. In 2012,
Judge Birken found that Baquero was $6,890 in arrears and ordered a $266 per month
payment going forward. More recently, Baquero has been litigating the enforcement of
his child support obligation in the New Jersey state courts. In 2018, New Jersey
Chancery Court Judge Thomas K. Isenhour issued an order stating that Baquero was
$22,132.39 in arrears. Judge Isenhour also denied Baquero’s application to dismiss
enforcement of his child support obligations.
Baquero then filed his federal complaint, attaching numerous state court
documents as exhibits, and invoking the United States Constitution. He alleged that he
has been deprived of his property to the point of homelessness. As relief, he sought
dismissal of his child support cases, refund of his child support payments, $10,000 in
damages from Judge Isenhour, an additional $10,000 from “the County,” and a share of
federal incentive funds. 1 He named as defendants Judge Birken, the Florida Department
of Revenue, and New Jersey state defendants Judge Isenhour, Judge Linda Mallozzi,
1
It appears from Baquero’s brief that his demand relates to state funding originating from
Federal Child Support Enforcement Program statutes.
2
Senior Probation Officer Christine Tardif, and Child Support Hearing Officer Konstantin
Feldman. Baquero also named as a defendant Jennifer Mendoza, the mother of
Baquero’s child. Judge Birken, the Florida Department of Revenue, and the New Jersey
state defendants filed motions to dismiss the complaint.
By opinion and order entered August 6, 2019, the District Court analyzed the
complaint as a civil rights action under 42 U.S.C. § 1983 and granted the defendants’
motions to dismiss on the basis of Eleventh Amendment immunity, judicial immunity,
quasi-judicial immunity, and Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. The District Court allowed Baquero 30 days to file a motion to amend his
complaint. On October 9, 2019, the District Court dismissed the complaint in its entirety
with prejudice, noting that Baquero did not file a motion to amend. The District Court
also concluded that dismissal was warranted regarding defendant Mendoza. 2 Baquero
filed a timely notice of appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s dismissal order. See Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544,
570 (2007)).
We agree with the District Court’s disposition of Baquero’s complaint. Neither
the Florida Department of Revenue as a state agency, nor defendants Birken, Feldman,
3
Mallozzi, and Isenhour as state officials in their official capacities, are “persons” capable
of being sued for civil rights violations under § 1983. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 70-71 (1989) (holding that while state officials literally are persons,
“neither a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983”). The Eleventh Amendment bars claims for damages against the Florida
Department of Revenue and against the individual defendants in their official capacities.
See Melo v. Hafer,
912 F.2d 628, 635 (3d Cir. 1990).
Concerning Judges Birken, Mallozzi, and Isenhour as defendants in their personal
capacities, it is well-settled that a judge is absolutely immune from suit for monetary
damages arising from judicial acts, except for those “taken in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S 9, 11–12 (1991). Baquero’s complaint concerns
the actions of the state court judges while engaged in quintessentially juridical activities,
such as presiding over child support proceedings and issuing rulings and orders.
Although Baquero disagrees with the judges’ decisions, the conduct at issue occurred
within their jurisdictional roles as judges. To the extent that Baquero sought injunctive
relief against the judicial defendants, such relief is barred by § 1983 itself, where Baquero
has made no allegation that a declaratory decree was violated or that declaratory relief is
unavailable. See 42 U.S.C. § 1983; Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir.
2006) (per curiam). Moreover, we agree with the District Court’s conclusion that
defendants Tardif and Feldman are entitled to quasi-judicial immunity for their roles in
2
Mendoza did not file an appearance in the proceedings.
4
implementing and enforcing child support orders. See, e.g., Gallas v. Supreme Court of
Pennsylvania, 211 F.3d 760, 772-73 (3d Cir. 2000) (citing cases).
We also agree with the District Court’s assessment that Baquero’s complaint was
insufficient to state a civil rights action. “To state a § 1983 claim, a plaintiff must
demonstrate the defendant, acting under color of state law, deprived him or her of a right
secured by the Constitution or the laws of the United States.” Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Baquero’s complaint listed the names of the
defendants but did not plead any factual allegations regarding their personal involvement
in an unlawful deprivation of Baquero’s rights. See Evancho v. Fisher,
423 F.3d 347,
353 (3d Cir. 2005) (explaining that a civil rights complaint must allege facts identifying
the “conduct, time, place, and persons responsible”); Rode v. Dellarciprete,
845 F.2d
1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have personal
involvement in the alleged wrongs.”).3 As for defendant Mendoza, aside from
identifying her as having been involved in the child support proceedings as the child’s
mother, the complaint similarly contained no factual allegations against her. 4
3
Baquero alleged that Judge Birken did not allow him to speak and be heard before
depriving him of his property, but as the District Court stated, the 2012 child support
judgment indicates that Baquero filed an answer in those proceedings and appeared at the
final hearing by telephone. (See District Court Op. at 9.) In any event, as stated earlier,
Judge Birken is immune from suit concerning his judicial actions.
4
Baquero’s complaint contains no suggestion that Mendoza was sued in any capacity
other than as a private citizen. Thus, his § 1983 suit against her also would fail because
he has not alleged that Mendoza is a state official or that she exercised state power. Her
participation as a party in the state court child support proceedings, by itself, does not
convert her involvement into action that can be “fairly attributed to the state itself.”
Groman v. Twp. of Manalapan,
47 F.3d 628, 638 (3d Cir. 1995).
5
Finally, Baquero cannot raise new claims or arguments in this appeal. For
instance, he seeks shared custody of the child and requests $797,777,994 in punitive
damages. He also makes specific references to a number of state and federal statutes and
regulations, including the Federal Child Support Enforcement Program statutes, the New
Jersey Constitution and Criminal Code, the North Dakota Constitution, and the
Immigration and Nationality Act. We generally do not review arguments raised for the
first time on appeal absent exceptional circumstances, see Tri-M Group, LLC v. Sharp,
638 F.3d 406, 416 (3d Cir. 2011), and none are present here. In any event, we have
considered Baquero’s arguments and conclude that they are without merit on the issue
before us, namely, whether the District Court appropriately dismissed Baquero’s case,
after providing an opportunity to amend his complaint.
We will affirm the District Court’s order.
6
