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Precedential or Non-Precedential: Non-Precedential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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"Mierzwa v. Garfield" (2005). 2005 Decisions. Paper 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NOT PRECEDENTIAL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, 510 U.S. 471, 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, 449 U.S. 24, 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, 360 F.3d 414, 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, 343 F.3d 632, 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, 457 U.S. 800, 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, 491 U.S. 58, 71 (1989).
III.
For the foregoing reasons, we affirm the District Court’s judgment.