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Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 1 of 25 PageID: 1218

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LEROY T. MOORE,

Plaintiff,

v.

PAULA T. DOW, et al.,

Defendants.

- and -

LEROY T. MOORE,

Plaintiff,

v.

:

:

:

MIDDLESEX COUNTY PROSECUTOR’S,:
et al.,

Defendants.

Civil Action No. : 11—281

(JLL)

Civil Action No. : 11—6198 (JLL)

OPINION

APPEARANCES:

LEROY T. MOORE, Plaintiff pro se
100 River Run, #V-8
Carteret, New Jersey 07008

ERIC L. HARRISON, ESQ.
METHPESSEL & WERBEL,
3 Ethel Road, Suite 300, P.O. Box 3012
Edison, New Jersey 08818-3012
Counsel for Defendants, Middlesex County Prosecutor’s Office,
Middlesex County Prosecutor Bruce J. Kaplan, Assistant

PC

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 2 of 25 PageID: 1219

Prosecutor Christopher Kuberiet, Valerie Lispano, Joseph
Celentano, Sergeant Scott, Investigator Craig Marchak,
Investigator Rodriguez and Investigator Ellmyer

GARY S. SPAGNOLA, ESQ.
GOLDEN, ROTHSCHILD, SPAGNOLA, LUNDELL, LEVITT & BOYLAN,
1011 Route 22 West, Suite 300, P.O. Box 6881
Bridgewater, New Jersey 08807-0881
Counsel for Defendants, Carteret Police Department, Larissa
Lilavois (formerly Berrios) (Incorrectly Pleaded as Lisa
Berrios), and Michael Dammaan

PC

LINARES, District Judge

Presently before the Court in these consolidated matters is a

motion for summary judgment

(Docket entry # 79)’ filed on behalf of

Defendants, Middlesex County Prosecutor’s Office, Middlesex County

Prosecutor Bruce J. Kaplan, Assistant Prosecutor Christopher

Kuberiet, Valerie Lispano, Joseph Celentano, Sergeant Scott,

Investigator Craig Marchak, Investigator Rodriguez and Investigator

Ellmyer,

(hereinafter “Middlesex County Prosecutor’s Office

Defendants” or “MCPO Defendants”) . Plaintiff filed an opposition

to the MCPO Defendants’ motion.

(Dkt. ## 83, 84.)

The MCPO

Defendants also filed a reply in support of their motion.

(Dkt.

#

81.) 2

1 The Court’s reference to documents by docket entry number pertains
to the docket record in Civil No. 11-281 (JLL) . Where appropriate,
the Court also will identify the corresponding docket entry number
in the consolidated case, Civil No. 11—6198 (JLL) .
In this instance,
the corresponding docket entry number for the identical summary
judgment motion by the Mercer County Prosecutor’s Office Defendants
is Docket number 21.
2 Civil No. 11—6198

(JLL)

(Dkt.

# 22)

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 3 of 25 PageID: 1220

On January 23, 2013, counsel for Defendants, Lisa Berrios,

Carteret Police Department and Michal Damman (hereinafter the

“Carteret Defendants”) filed a motion for summary judgment

essentially relying on the motion filed by the MCPO Defendants.

(Dkt.

# 80.)

These motions are decided on the papers without oral

argument pursuant to Federal Rule of Civil Procedure 78.

For the

reasons set forth below,

summary judgment will be granted and the

Complaints in both Civil Nos. 11-281 (JLL) and 11—6198

(JLL) will

be dismissed.

A.

Procedural History

I.

BACKGROUND

On or about January 18, 2011, Plaintiff, Leroy T. Moore, filed

this civil rights Complaint, pursuant to 42 U.S.C. § 1983, against

the following defendants: Paula T. Dow, Attorney General of the State

of New Jersey; Bruce Kaplan, Middlesex County Prosecutor; Valerie

Lispano; Joseph Celentano; Sgt. Scott; Investigator Craig Marchak;

Investigator Rodriguez; Investigator Ellmyer; Lisa Berrios; Michael

Dammaan; Carteret Police Department; Middlesex County Prosecutor’s

Office; Chief of Carteret Police Department; Officer Paul

Stenetella; and Christopher Kuberiet, Esq.

(Dkt.

# 1, Complaint,

Caption) .

The Complaint alleges that, on August 28, 2009,

the MCPO

Defendants and officers of the Carteret Police Department entered

Plaintiff’s residence pursuant

to a search warrant purportedly

3

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forged by Defendant Celentano.

The Complaint also alleges that the

officers entered Plaintiff’s apartment with an unleashed and

unsupervised K-9 dog, and grabbed Plaintiff’s young daughter,

tossing her to the ground.

(Id., ¶I C.l, C.2.) Plaintiff further

alleges that Defendants Dammaan, Celentano and Stenetella used

excessive force against Plaintiff by striking Plaintiff’s head with

a police scanner, and choking Plaintiff while he was handcuffed.

Plaintiff did not allege any injuries from the assault.

(Id.,



C.2.)

The Complaint also asserted general claims of failure to train

and/or supervise based on supervisory liability against Defendants,

then-Attorney General Dow, Middlesex County Prosecutor Kaplan, and

the Chief of the Carteret Police Department.

A malicious

prosecution claim was asserted against Defendant Kuberiet.

(Id.)

In an Opinion and Order issued on June 2, 2011,

the Court

dismissed the Complaint without prejudice as to the supervisory

Defendants, Dow, Kaplan, and the Carteret Chief of Police.

The

malicious prosecution claims asserted against Defendants Kuberiet

and Lispano were also dismissed without prejudice, and the Complaint

was dismissed without prejudice as to Defendant Ellmyer for failure

to allege any facts sufficient to state a cognizable claim of

constitutional deprivation. Finally,

the Court dismissed with

prejudice Plaintiff’s excessive force claim for failure to state a

4

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 5 of 25 PageID: 1222

claim.3 However,

the Court allowed Plaintiff’s Fourth endment

unlawful search and seizure claim to proceed, but

issued an Order

directing the parties to show cause why the claim should not be stayed

until completion of Plaintiff’s state criminal proceedings.

(Dkt.

# 19.)

By Order entered on August 9, 2011,

this matter was stayed

pending conclusion of the state criminal proceedings against

Plaintiff.

(Dkt.

# 40.)

On October 20, 2011,

this Court denied

Plaintiff’s application to amend his Complaint without prejudice

until Plaintiff’s state criminal prosecution was resolved.

(Dkt.

# 48.)

On September 1, 2011, Plaintiff filed a civil complaint in the

Superior Court of New Jersey, Law Division, captioned Moore v.

Middlesex County Prosecutor’s Office, et al., Docket No. L-6329-11,

against Defendants Middlesex County Prosecutor’s Office, Assistant

Prosecutor Christopher Kuberiet, and Investigator Celentano.

The

Complaint alleged claims of prosecutorial misconduct regarding

Plaintiff’s then-ongoing state criminal proceeding, namely, a claim

that Defendants breached a plea agreement. Counsel for Defendants

removed the action to this District Court, which was docketed under

3 The Court had acknowledged that Plaintiff had two prior
opportunities to set forth allegations sufficient to state an
excessive force claim, but failed to do so on both occasions.
(Dkt.
# 18 at 13-15; see also Franklin, et al. v. Borough of Carteret, et
al., Civil No. 10-1467 (JLL)

4 at 11-13)).

(Dkt.
5

#

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Moore v. Middlesex County Prosecutor’s Office, et al., Civil No.

11—6198

(JLL) .

On January 17, 2012,

the Court entered an Order

consolidating Civil No. 11-6198 (JLL) with Civil No. 11-281 (JLL),

finding that the allegations in Civil No. 11-6198 arise from the same

circumstances and events of Plaintiff’s arrest, which is the subject

of Civil No. 11-281.

(Dkt.

# 15 in Civil No. 11-6198; Dkt.

# 52 in

Civil No. 11-281.)

The consolidated action remained stayed.

(Id.)

On March 21, 2012,

the stay was lifted upon Plaintiff’s

representation that the state criminal proceeding had concluded.

(Dkt. # 55.) However, the Court reinstated the stay by Order entered

on May 12, 2012, after Defendants’ counsel

informed the Court that

the state criminal proceedings had not yet concluded.

(Dkt. # 59.)

Despite the stay, on November 19, 2012,

the Court allowed Defendants

to file a motion for summary judgment and a motion for default

judgment

in Civil Nos. 11-281 and 11-6198, respectively.

(Dkt.

#

70.)

The MCPO Defendants filed this motion for summary judgment on

January 9, 2013.

(Dkt. # 79; Dkt. # 21 in Civil No. 11-6198 (JLL) .)
The Carteret Defendants filed their motion for summary judgment in

Civil No. 11-281 (JLL), on January 18, 2013, essentially relying on

the motion filed by the MCPO Defendants.

(Dkt.

# 80.) Plaintiff

filed an opposition to Defendants’ motion on January 17, 2013.

(Dkt.

6

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 7 of 25 PageID: 1224

# 83.)

The MCPO Defendants thereafter filed a reply with exhibits.

(Dkt. ## 81, 82.) Plaintiff submitted a further response on May 14,

2013.

(Dkt.

# 95.)

B.

Statement of Facts

The following facts are derived from the Defendants’ Statement

of Material Facts, submitted with their motion for summary judgment,

pursuant

to Fed.R.Civ.p. 56(c).

(Dkt.

# 79—4.) Plaintiff’s

opposition to the motion for summary judgment did not contain a

separate Statement of Material Facts, but it appears that he is

relying on his opposition response to identify material facts in

dispute.

1.

Factual Allegations in Civil No. 11-281 (JLL)

Plaintiff has filed four separate civil rights actions pursuant

to 42 U.S.C. § 1983, each stemming from his arrest and subsequent

drug charges filed in the Superior Court of New Jersey in 2009.

These

actions include:

(1) Franklin, et al. v. Borough of Carteret, et

al., Civil No. 10-1467 (JLL)

(dismissed without prejudice, pursuant

to 28 U.S.C. § 1915(e) (2) (B) (ii) and 1915A(b) (1), on November 15,

2010);

(2) Moore v. Dow, et al., Civil No. 11-281 (JLL);

(3) Moore

v. Middlesex County Prosecutor’s Office, et al., Civil No. 11-6198

4 It appears that an incomplete duplicate copy of Plaintiff’s
opposition also was docketed in this matter.
January 28, 2013, Plaintiff also filed an opposition to the summary
judgment motion in Civil No. 11-6198 (JLL).

# 84.)

(Dkt.

On

7

(Dkt.

# 23.)

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 8 of 25 PageID: 1225

(JLL); and (4) Moore v. Middlesex County Prosecutor’s Office, et al.,

Civil No. 11-3879 (JLL)

(dismissed with prejudice, pursuant to 28

U.S.C. § 1915(e) (2) (B) (iii) and 1915A(b) (2), on May 10, 2012).

In the present action, Civil No. 11—281 (JLL), Plaintiff alleges

that, on August 28, 2009, members of the MCPO and the Carteret Police

Department unlawfully entered his apartment pursuant

to a search

warrant allegedly forged by Defendant Celentano. Plaintiff alleges

that the officers entered his apartment with an unleashed and

unsupervised K-9 dog, and that the officers grabbed Plaintiff’ s young

daughter and tossed her to the ground.

He further alleges that

Celentano hit Plaintiff on the head with a police scanner and choked

him while he was handcuffed, but Plaintiff does not allege any

injuries from the incident.

(Dkt.

#

1 at ¶I C.l, C.2.)

On June 2, 2011,

this Court dismissed without prejudice

Plaintiff’s claims asserting (a) supervisor liability against

Defendants Dow and Kaplan;

(b) malicious prosecution against

Defendants Lispano and Kuberiet; and (c) unspecified claims against

Defendant Ellmyer.

(Dkt.

# 18.) Plaintiff’s Fourth Amendment

the Court

claim alleging unlawful search and seizure was allowed to proceed,
but

issued an Order directing the parties to show cause
why the claim should not be stayed until completion of Plaintiff’s
state criminal proceedings.

(Dkt.

# 19.)

The Court stayed this

matter shortly thereafter on August 9, 2011.

(Dkt.

# 40.)

8

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2.

Factual Allegations in Civil No. 11-6198 (JLL)

In the consolidated case, Civil No. 11—6198

(JLL), Plaintiff

alleges that, on October 8, 2009, he agreed to a plea arrangement

with the MCPO, which would enable Plaintiff to “work his sentence

down” to probation by aiding the police as an informant.

(Dkt.

#

21-3 at Exhibit D, Factual Background, ¶ 1.)

On January 28, 2010,

Plaintiff alleges that he spoke with Defendant Celentano by telephone

regarding an upcoming “ongoing transaction.”

(Id.,

¶ 4.) During

their phone conversation, Plaintiff informed Celentano that he had

a required court appearance on the same day as the upcoming

transaction, and Plaintiff alleges that Celentano told Plaintiff

that he would “cancel said date [sic] don’t [sic] worry about it.”

Plaintiff was arrested later for failure to appear in court and was

charged with jumping bail.

(Id., ¶ 4, 5.) Plaintiff alleges that

Celentano “purposely misled” Plaintiff, causing Plaintiff to receive

additional charges,

in violation of Plaintiff’s Eighth and

Fourteenth Amendment rights.

(Id.,

¶ 7.) Plaintiff also alleges

that Defendant Kuberiet breached the plea agreement by stating that

Plaintiff did not provide enough assistance.

(Id.,

¶ 6.)

On January 23, 2012,

the Superior Court of New Jersey allowed

Plaintiff to withdraw his guilty plea, move for a hearing to determine

whether Plaintiff had provided substantial assistance, or

9

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 10 of 25 PageID: 1227

re—negotiate his plea agreement.5 The state court found that “there

[was] an issue as to the prosecutor’s actual recommendation at

sentencing and the terms of the negotiated plea.”

(Id., Ex. F.)

Citing State v. Gems, 145 N.J. 216 (1996), the state court commented

that a plea agreement should define the terms of cooperation to make

certain that the defendant fully understands the penal consequences

of his plea.

(Id.)

The state court concluded that Plaintiff did

not understand the extent of the cooperation in the plea agreement,

and the plea agreement failed to include the prosecutor’ s recommended

sentence or the sentence that Plaintiff would receive if he

cooperated to the satisfaction of the prosecutor.

(Id.)

On February 14, 2012, Plaintiff wrote to this Court to inform

that “on February 6, 2012, [Plaintiff’s] attorney advised the court
that [he] will be withdrawing said plea and proceeding for a trial.”

(Dkt.

# 53.)

On January 2, 2013, Plaintiff filed a fifth related lawsuit in
the Superior Court of New Jersey, Law Division, Middlesex County,

under Docket No. MID-L-39-13, against many of the same Defendants

in the present case.

the named Defendants in
that case removed the state action to this Court, and Plaintiff did

On February 15, 2013,

5 This Court took judicial notice of the state court’s January 23,
2012 Opinion and Order.

10

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not seek to remand the case back to state court.

See Moore v.

Carteret Police Department, et al., Civil No. 13-943 (JLL).

In Plaintiff’s most recent case, Civil No.

13—943

(JLL),

Plaintiff asserts a claim of malicious prosecution stemming from the

filing of a new indictment by Defendant Kuberiet against Plaintiff,

on December 20, 2012, after Superior Court Judge Toto dismissed the

2009 grand jury indictment for failure to establish a prima facie

case of possession of a controlled dangerous substance.

(Dkt. ##

81, 82, Exhibit Q.)

In its December 17, 2012 written decision,

the

court noted that, during the grand jury presentation, Officer Reyes

testified that “a search incident to arrest of Defendant revealed

a twenty dollar bill with a white powdery substance on it as well

as a small amount of marijuana,” and that “the white powdery substance

was

‘known’

to be cocaine.”

(Dkt.

# 82, Ex. R.)

The state court

found that the grand jury indicted Plaintiff on the charge of

possession of a controlled dangerous substance solely on the

testimony of Officer Reyes, and that the State had not submitted any

further evidence to support

the conclusion that the white powdery

substance on the twenty dollar bill was in fact cocaine.

Thus,

the

court concluded that the State failed to establish a prima facie case

as to the first element of N.J.S.A. 2C:35—1Q(a) (1), and dismissed

the indictment without prejudice.

The court expressly stated,

however, that it did not grant dismissal of the indictment on grounds

11

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of “vindictive prosecution, selective prosecution, malicious

prosecution, or violation of Defendant’ s Constitutional rights under

the 5th 8th or j4th Amendments”

(Id.)

3.

Previous Lawsuits Subject

to 28 U.S.C. § l915(g)

Defendants’ motion for summary judgment

includes a motion to

revoke Plaintiff’s in forma pauperis status, pursuant to 28 U.S.C.

§ 1915 (g) .

The Court notes that Plaintiff has filed the following

cases in federal court, which have been dismissed pursuant to 28

U.S.C. § 1915(e) (2) (B):

• Moore v. Comba, et al., Civil No. 03—2521 (WHW)

(Dkt. ## 2,

3 - dismissal pursuant

to 28 U.S.C. § 1915(e) (2) (B) (ii) and

1915A(b) (1) on June 13, 2003)

• Moore v. Abode, et al., Civil No. 03-3259 (WHW)

(Dkt. ## 2,
3 and 4 - dismissal pursuant to 28 U.S.C. § 1915(e) (2) (3) on October

6, 2003 and December 10, 2003)

• Moore v. Abortion Clinic, et al., Civil No. 04-963 (KSH)

(Dkt. ## 3,

4 — dismissal with prejudice pursuant

to 28 U.S.C.

§

1915(e) (2) (B) (ii) on December 17, 2004)

• Moore v. Shaw, et al., Civil No. 04—3343 (MLC)

(Dkt. ## 5,

6 - dismissal pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) and

1915A(b) (1) on June 27, 2005)

12

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Franklin, etal. v. Boroughof Carteret Police Dept., etal.,

Civil No. 10-1467 (JLL)

(Dkt. ## 4, 6 - dismissal pursuant to 28 U.S.C.

§ 1915(e) (2) (B) (ii) and 1915A(b) (1) on November 15, 2010)

Further, on February 18, 2005, Plaintiff filed a civil Complaint

seeking in forma pauperis status in Moore v. State of N.J., et al.,

Civil No. 05-1134 (FLW) .

In an Opinion and Order entered on May 12,

2005,

the Honorable Freda L. Wolfson granted Plaintiff in forma

pauperis status and dismissed all claims asserted by Plaintiff except

a denial of access to the courts claim, which was allowed to proceed

against several defendants.

(Dkt. ## 2, 3.) However, on July 19,

2005,

the defendants filed a motion to dismiss the complaint and to

revoke Plaintiff’s in forma pauperis status pursuant to 28 U.S.C.

§ 19l5(g)

the “three—strikes” ban.

(Dkt.

# 6.)

In an Order

entered on October 3, 2005, Judge Wolfson granted the defendants’

motion, dismissed the complaint and denied Plaintiff’s in forma

pauperis status.

The Court found that Plaintiff, while

incarcerated, had at least three prior civil actions dismissed by

a federal court pursuant to 28 U.S.C. § 1915(e) (2) (B), namely, Moore

v. Abode, et al., Civil No. 03-3259 (WHW), Moore v. Abortion Clinic,

et al., Civil No. 04-963 (KSH), and Moore v. Shaw, et al., Civil No.

04-3343 (MLC), and that Plaintiff had not shown that he was in

imminent danger of serious physical injury at the time he filed his

complaint.

(Dkt.

# 14.)

13

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II.

ANALYSIS

A.

The Consolidated Cases Are Ripe for Disposition

In allowing Defendants to move for summary judgment,

the Court

directed that Defendants explain why the cases are ripe for summary

disposition. With regard to Civil No. 11-281 (JLL), Defendants

argue that:

(1) Plaintiff was barred from bringing a civil action

without prepayment of the filing fee if he has incurred three strikes

pursuant to 28 U.S.C. § 1915(g);

(2) the outcome of the state criminal

proceeding has no relevance to Plaintiff’s federal civil litigation

history, which is the only evidence needed to resolve Defendant’s

motion pursuant to 28 U.S.C. § l915(g); and (3)

the motion presents

only a legal question that can be resolved solely by reference to

court records without

the need for fact discovery.

As

to Civil No. 11—6198

(JLL), Defendants contend that this

matter is ripe for summary disposition because the New Jersey state

court’s decision allowing Plaintiff to retract his guilty plea, which

Plaintiff did so retract, is wholly dispositive of Plaintiff’ s breach

of his plea agreement claim.

Finally,

this Court notes that the state criminal proceeding

concluded when, on December 17, 2012, Judge Toto dismissed the

indictment without prejudice.

For all of these reasons,

the Court

concludes that both matters are ripe for disposition.

B. Plaintiff’s In Forma Pauperis Status is Barred

14

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The Prison Litigation Reform Act of 1995 (“PLRA”), enacted on

April 26, 1996, prohibits a prisoner from bringing a civil action

in forma pauperis, pursuant to 28 U.S.C.

§ 1915, “if the prisoner

has, on 3 or more prior occasions, while incarcerated or detained

in any facility, brought an action or appeal in a court of the United

States that was dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious physical

injury.”

28 U.S.C. § 1915(g); see also Ball v. Famiglio, --- F.3d

----, 2013 WL 4038562,

*

1

(3d Cir. 2013); Keener v. Pennsylvania

Board of Probation & Parole, 128 F.3d 143, 144-45 (3d Cir. 1997)

(holding that frivolousness dismissals prior to enactment of PLRA

count as “strikes” under § 1915(g)).

The federal

in forma pauperis statute, 28 U.S.C.

§ 1915,

is

designed to ensure that indigent litigants,

including prisoners,

have meaningful access to the federal courts. Ball, supra.

However, because prisoner litigation represents an “outsized share

of filings” in federal courts,

the PLRA was enacted to “filter out

the bad claims and facilitate consideration of the good.”

Id.

(quoting Jones v. Bock, 549 U.S. 199, 203, 204 (2007)).

One of the

“filter” measures includes the “three—strikes” provision under §

1915 (g), which was created “to limit the number of lawsuits brought

by prisoners with a history of meritless litigation.” Ball, supra.

15

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Thus, if a prisoner previously has incurred three strikes pursuant

to dismissals based on § 1915 Ce) (2) (B), and he attempts to bring

another lawsuit

in forma pauperis,

the court should deny indigent

status and dismiss the complaint without prejudice to the prisoner’s

right to re-file upon pre-payment of the full filing fee.

Brown v.

City of Philadelphia, 331 F. App’x 898, 899 (3d Cir. 2009).

Analysis under the “three-strikes rule” of § 1915(g) must be

made at the time of commencement of the action.

Lopez v. U.S. Dept.

of Justice, 228 F. App’x 218, 219 (3d Cir. 2007)

(citing Abdul—Akbar

v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001)).

“[O]nly the strikes

actually earned up to that time are relevant.

The statute does not

authorize courts to revoke in forma pauperis status if a prisoner

later earns a third strike.” Lopez, 228 F. App’x at 219.

Additionally, “[a] dismissal does not qualify as a ‘strike’ for

§ 1915 (g) purposes unless and until a litigant has exhausted or waived

his or her appellate rights.”

Id. at 218.

The three-strikes provision of § l915(g) does not block a

prisoner’s access to the federal courts. Rather, it only denies the

litigant the privilege of filing before he has acquired the requisite

filing fee. Ball, 2013 WL 4038562 at *2. Further, a prisoner who

has three or more such dismissals may be excused from this rule only

if he is “under imminent danger of serious physical injury.” Keener,

supra. When deciding whether an inmate meets the “imminent danger”

16

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requirement, a court must examine the situation faced by the inmate

at the time of the filing of the complaint, and a showing of danger

in the past is insufficient to demonstrate “imminent danger.”

Abdul-Akbar, 239 F.3d at 312.

As

indicated by Defendants, Plaintiff has filed five earlier

civil actions in the District of New Jersey that were dismissed for

failure to state a claim pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii)

and l915A(b) (1).

These cases are Moore v. Comba, et al., Civil No.

03-2521 (WHW); Moorev. Abode, etal., Civil No. 03-3259 (WRW); Moore

v. Abortion Clinic, et al., Civil No. 04-963 (KSH); Moore v. Shaw,

et al., Civil No. 04-3343 (MLC); and Franklin, et al. v. Borough of

Carteret Police Dept., et al., Civil No. 10-1467 (JLL). Moreover,

Plaintiff had another action dismissed after the district court

determined, upon defendant’s motion,

that Plaintiff had incurred

three strikes under 28 U.S.C. § l915(g) .

SeeMoore v. State of N.J.,

et al., Civil No. 05-1134 (FLW)

(Dkt. # 14) . Accordingly, Plaintiff

is deemed a litigant with “three strikes” under 28 U.S.C. § l915(g)

because he has passed the statutory limit set forth in that statute.6

In particular, Defendants contend that Plaintiff is

6 The Court also acknowledges Defendants’ argument concerning the
vexatious nature of Plaintiff’s civil complaints.
# 79—5 at
11, n. 2.)
“precisely the sort of serial frivolous litigant that Congress had
in mind when it enacted 28 U.S.C. § l915(g)
to ‘limit the filing of
frivolous and vexatious prisoner lawsuits.’”
further note that Plaintiff has displayed contemptuous and vexatious
conduct in his state criminal proceedings by using obscene language

17

(Dkt.

(Id.) Defendants

Case 2:11-cv-00281-JLL-JAD Document 106 Filed 09/19/13 Page 18 of 25 PageID: 1235

Plaintiff is now precluded from seeking in forma pauperis status

pursuant to § 1915 (g) ‘s “three strikes” rule unless he alleges facts

to show that he is in “imminent danger of serious physical injury,”

which would excuse him from the restrictions under § l915(g).

In his Complaint, Plaintiff makes no allegations or claims of

“imminent danger.” Rather,

the Complaint merely asserts a Fourth

Amendment unlawful search and seizure claim with regard to

Plaintiff’s 2009 arrest and indictment for drug possession.

Consequently, because the Complaint in this action does not contain

sufficient allegations reasonably suggesting that Plaintiff is in

“imminent danger of serious physical injury,” which would excuse him

from the restrictions under § 1915 (g), Plaintiff may not proceed in

forma pauperis. Accordingly,

this Court will grant Defendants’

motion to revoke Plaintiff’s in forma pauperis status and dismiss

the Complaint

in Civil No. 11-281 (JLL) . Plaintiff may seek to

reinstate his action in Civil No. 11-281 (JLL) only upon submission

of the full filing fee pursuant

to 28 U.S.C.

§ l914(a).

C.

Summary Judgment as to Civil No. 11-6198 (JLL)

1.

Summary Judgment Standard

Summary judgment is appropriate if the record shows “that there

is no genuine dispute as to any material fact and the movant is

in addressing the state judge and referring to Defendant Kuberiet
and his wife as “murderers” after they tragically lost their daughter
in a car accident.

(Id.)

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entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see

also Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir.

2010) .

A district court considers the facts drawn from the

wmaterials in the record,

including depositions, documents,

electronically stored information, affidavits .. . or other

materials” and must “view the inferences to be drawn from the

underlying facts in the light most favorable to the party opposing

the motion.” Fed.R.Civ.p. 56(c) (1) (A); Curley v. Klem, 298 F.3d 271,

27 6—77 (3d Cir. 2002) (internal quotations omitted) .

The Court must

determine “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, 477 U.S. 242, 251—52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

More precisely,

summary judgment should only be granted if the

evidence available would not support a jury verdict in favor of the

nonmoving party.

Id. at 248-49.

“[T]he mere existence of some

alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment;

the

requirement is that there be no genuine issue of material fact.”

Id.

at 247—48.

“To be material, a fact must have the potential to alter

the outcome of the case.” DeShields v. Int’l Resort Props. Ltd.,

463 F. App’x 117, 119 (3d Cir. 2012)

(citation omitted)

2. Plaintiff’s Breach of Contract Claim is Moot

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In the Complaint filed in Civil No. 11-6198, Plaintiff alleges

that on October 8, 2009, he had entered into a plea agreement with

the MCPO allowing Plaintiff to “work his sentence down” to probation

in return for providing assistance and information to law

enforcement.

(CivilNo. 11-6198 (JLL) atDkt. #21-3, Ex. D—Factual

Background at ¶ 1.) Plaintiff asserts that Defendant Kuberiet

breached this plea agreement by stating that Plaintiff failed to

provide enough assistance. Defendants now contend that this claim

is rendered moot by the state court’s January 2012 decision which

allowed Plaintiff either to withdraw his guilty plea, move for a

hearing to determine whether his cooperation with the MCPO was of

substantial benefit to the State, or re-negotiate a plea agreement.

Plaintiff chose to withdraw his plea agreement

in February 2012.

The Third Circuit has held that where a criminal defendant

asserts a claim for breach of a plea agreement, his sole remedy is

to seek specific performance or to withdraw the guilty plea. United

States v. Williams, 510 F.3d 416, 426-27 (3d Cir. 2007) .

The Third

Circuit has further held that the government is in breach of a plea

agreement only where there is a showing that the government evaluated

the defendant’s assistance in bad faith. United States v. Ortiz,

314 F. App’x 467, 471 (3d Cir. 2008) . Under New Jersey state law,

where the prosecutor has the authority to assess defendant’s

cooperation under a plea agreement,

the defendant has the right to

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a hearing in state court to determine whether the cooperation was

adequate under the terms of the plea agreement.

See State v. Gems,

145 N.J. 216, 228-29 (1996)

(citing New Jersey Attorney General

Guidelines)

Here, it is clear that Plaintiff has obtained the relief to which

he was entitled in state court. Specifically, in a written decision

rendered on January 23, 2012, Judge Toto allowed Plaintiff to retract

his guilty plea. Plaintiff did so on February 6, 2012. Further,

on January 18, 2012, this Court declared in an Order granting a stay

of this matter, Civil No. 11—6198 (JLL), that “[s]hould the Superior

Court permit Plaintiff to withdraw his guilty plea,

the plea

agreement which is the subject of the instant litigation will be null

and void, making the matter moot and defeating this Court’s

jurisdiction over the matter.”

(Dkt. #15 at ¶ 4.) Therefore, since

the Superior Court of New Jersey has allowed Plaintiff to retract

his guilty plea, and Plaintiff has withdrawn his guilty plea on

February 6, 2012, his claim of breach of the plea agreement is

rendered moot and will be dismissed accordingly.

3. Eighth Amendment Claim

Plaintiff also asserts that the actions of Defendants Kuberiet

and Celentano,

in stating that Plaintiff failed to provide adequate

cooperation and in telling Plaintiff that he did not have to attend
a scheduled court appearance, violated his Eighth Amendment rights.

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The Eighth Amendment prohibits cruel and unusual punishment and was

designed to protect convicted prisoners. Specifically,

the Eighth

Amendment’s prohibition against cruel and unusual punishment

generally pertains to the actions or conduct of prison officials with

respect to a prisoner’s confinement, such as prohibiting the use of

excessive force, and imposing a duty to provide “humane conditions

of confinement.”

See Betts v. New Castle Youth Dev. Ctr., 621 F.3d

249 (3d Cir. 2010)

Here, Plaintiff has not made any allegations that he suffered

any instances of excessive force while confined, or that he was

subjected to unconstitutional conditions of confinement during his

period of incarceration. Therefore,

the Court holds that Plaintiff

has not stated a cognizable claim for relief under the Eighth

Amendment, and this claim will be dismissed.

4.

Fourteenth Amendment Claim

The Court likewise finds that Plaintiff has failed to state a

cognizable claim under the Fourteenth Amendment. Plaintiff alleges

only that Defendant Kuberiet “continued purposely [to deprivej

[P]laintiff of the benefit he was entitled to ... purposely to obtain

a benefit for himself,” and that Defendant Celentano “purposely

misled” Plaintiff regarding the adjournment of a court date, which

Celentano did not adjourn,

in violation of Plaintiff’s Eighth and

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Fourteenth Amendment rights.

(Dkt.

# 21-3, Ex. D, Factual

Background at ¶I 4,

5 and 6.)

Defendants argue that the Fourteenth Amendment claim must be

dismissed under the “more-specific-provision” rule because

Plaintiff alleges the very same facts in support of his Eighth

Amendment claim to support his Fourteenth Amendment claim.

See

Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3d Cir. 2010),

cart. denied, --- U.S. ----, 131 S.Ct. 1614, 179 L.Ed.2d 502 (2011)

The Betts court addressed the Supreme Court’s

“more—specific-provision” rule, which states that “if a

constitutional claim is covered by a specific constitutional

provision,

such as the Fourth or Eighth Amendment,

the claim must

be analyzed under the standard appropriate to that specific

provision,” and not under the Fourteenth Amendment’ s substantive due

process standard.

Id.

In Betts,

the plaintiff supported his

Fourteenth Amendment claims with the same evidence he relied on to

support his Eighth Amendment claim.

The Third Circuit held
that plaintiff may not challenge the very same conduct under both

Id.

substantive due process and the Eighth Amendment, and dismissed the

Fourteenth Amendment claims accordingly.

Id. at 261.

Here,

the Complaint contains no facts to support a cognizable

Fourteenth Amendment claim separate and apart from the Eighth

Amendment claim. Therefore,

the Court holds that Plaintiff’s

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Fourteenth Amendment claim is barred pursuant to the

“more-specific-provision” rule, and the Fourteenth Amendment claim

will be dismissed.

CONCLUS ION

For the foregoing reasons,

the Court will grant the MCPO and

Carteret Defendants’ motions for summary judgment,

(Dkt. ## 79, 80),

as to Civil No. 11—281 (JLL), dismissing the action in its entirety,

pursuant to 28 U.S.C. § 1915(g), without prejudice to Plaintiff’s

right to re-file his Complaint with prepayment of the full filing

fee as required under 28 U.S.C. § 1914(a).

Further, the Court grants

the MCPO Defendants’ motion for summary judgment

(Dkt. #21), with

respect to Civil No. 11—6198 (JLL), and dismisses the Complaint in
its entirety as to all named Defendants.

An appropriate Order

follows.

ed States District Court

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