Eleanor Capogrosso v. the Supreme Court of the State of New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3816
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ELEANOR CAPOGROSSO,
Appellant
v.
THE SUPREME COURT OF THE STATE OF NEW
JERSEY; STUART RABNER (INTENDED TO BE THE
CHIEF JUDGE OF THE SUPREME COURT OF NEW
JERSEY); ADVISORY COMMITTEE ON JUDICIAL
CONDUCT; CANDACE MOODY (INTENDED TO BE
THE DISCIPLINARY COUNSEL FOR THE ADVISORY
COMMITTEE ON JUDICIAL CONDUCT); JOHN
TONELLI (INTENDED TO BE THE DIRECTOR OF THE
ADVISORY COMMITTEE ON JUDICIAL CONDUCT);
HON. MAURICE J. GALLIPOLI, J.S.C.; HON. PETER F.
BARISO, J.S.C.; HON. BARBARA A. CURRAN, J.S.C.;
HON. MAHLON L. FAST, J.S.C.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey

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(D.C. Civil Action No. 07-cv-05579)
District Judge: Honorable Faith S. Hochberg
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 1, 2009
Before: RENDELL, FUENTES and ALDISERT, Circuit
Judges
(Opinion filed: November 27, 2009)
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OPINION
___________
PER CURIAM
Pro se appellant Eleanor Capogrosso, an attorney, filed
a civil rights action against, inter alia, four New Jersey Superior
Court judges, the New Jersey Advisory Committee on Judicial
Conduct (“ACJC”), ACJC Disciplinary Counsel Candace
Moody, and ACJC Director John Tonelli. Her claims stemmed
from alleged judicial misconduct in her state court cases and
alleged misconduct on the part of the ACJC, which is charged
under the New Jersey Rules of Court with investigating claims
of judicial misconduct. Capogrosso appeals from the District
Court decision dismissing her 42 U.S.C. § 1983 complaint under
Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction

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pursuant to 28 U.S.C. § 1291.
I
Since around 2001, Capogrosso has been involved as a
litigant in various state court lawsuits related to tenancy
disputes. During the course of these cases, Capogrosso
appeared before Superior Court Judges Gallipoli, Fast, Curran,
and Bariso. At some point in each case, the judges’ judicial
conduct appeared to Capogrosso as criminal or violative of her
rights as a litigant. Following each incident, she filed a
complaint with the ACJC. The ACJC dismissed all five
complaints.
In November 2007, Capogrosso filed a 21-claim
complaint in the District Court. Five of those claims alleged
that the Superior Court judges’ conduct on the bench amounted
to criminal behavior. Capogrosso also raised claims, citing both
the Fourteenth Amendment and 42 U.S.C. § 1983, that the
ACJC violated her rights by dismissing her complaints against
the judges. Based on these alleged violations, Capogrosso
raised five claims for costs and attorney’s fees. Further,
Capogrosso claimed that New Jersey Court Rule 2:15, which
established the ACJC, violates the New Jersey Constitution.
Capogrosso also alleged that, during the pendency of her
federal case, another incident involving Judge Fast occurred.
While in Superior Court, Capogrosso was waiting with her
attorney outside of Judge Fast’s chambers. Judge Fast exited his
chambers, saw Capogrosso with her attorney, and entered the
chambers of Superior Court Judge Iglesias, before whom

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In her notice of appeal, Capogrosso states that she1
appeals all unfavorable orders related to the dismissal of her
complaint. Because Capogrosso is an experienced litigant, we
limit our consideration to the arguments raised in her
appellate brief. Nevertheless, we remain mindful of our
obligation to construe a pro se litigant’s pleadings liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
4
Capogrosso was about to appear as a litigant. When she
appeared before Judge Iglesias, he denied a motion her attorney
had filed, although her lawyer commented to her that such
motions were routinely granted. Capogrosso amended her
federal complaint to allege that Judge Iglesias’ surprising ruling,
viewed in light of his interaction with Judge Fast before
Capogrosso’s court appearance, gave rise to an inference of
improper influence, in violation of her due process rights.
The Defendant-Appellees filed a Rule 12(b)(6) motion to
dismiss, which the District Court granted. Capogrosso’s motion
for reconsideration was denied and she filed a timely notice of
appeal.1
II
We exercise plenary review over the District Court order
granting the Rule 12(b)(6) motion. See McGovern v.
Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). “We accept all
well-pleaded allegations in the complaint as true and draw all
reasonable inferences in [Capogrosso’s] favor.” Id. “The
District Court’s judgment is proper only if, accepting all factual

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allegations as true and construing the complaint in the light most
favorable to [Capogrosso], we determine that [she] is not
entitled to relief under any reasonable reading of the complaint.”
Id.
The District Court dismissed Capogrosso’s criminal
claims against the Superior Court judges under the doctrine of
judicial immunity. “A judicial officer in the performance of his
duties has absolute immunity from suit and will not be liable for
his judicial acts.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir.
2006). “A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to liability only
when he has acted ‘in the clear absence of all jurisdiction.’” Id.
(quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).
Here, the District Court reasoned that all of the allegations
against Judges Gallipoli, Bariso, Fast, and Curran related to
actions they took as judges. We agree and note that despite her
unsupported assertions to the contrary, Capogrosso has not set
forth any facts that would show that any of the judges acted in
the absence of jurisdiction. Likewise, the District Court
correctly noted that Capogrosso’s criminal claims fail to state a
cause of action under § 1983, as individual citizens do not have
a constitutional right to the prosecution of alleged criminals.
See Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988).
We also agree that Capogrosso failed to state a § 1983
claim for Judge Fast’s alleged improper influence. The Federal
Rules of Civil Procedure require that a plaintiff assert more than
mere labels and conclusions. See Fed. R. Civ. P. 8; Phillips v.
County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008).

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“[A] complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570
(2007)). Thus, a “judicial conspiracy” claim must include at
least a discernible factual basis to survive a Rule 12(b)(6)
dismissal. See Crabtree v. Muchmore, 904 F.2d 1475, 1480-81
(10th Cir. 1990). To wit:
The Court is mindful that direct evidence of a
conspiracy is rarely available and that the
existence of a conspiracy must usually be inferred
from the circumstances. The Court is equally
mindful that caution is advised in any pre-trial
disposition of conspiracy allegations in civil rights
actions.
However, the rule is clear that allegations of a
conspiracy must provide some factual basis to
support the existence of the elements of a
conspiracy: agreement and concerted action. A
conspiracy cannot be found from allegations of
judicial error, ex parte communications (the
manner of occurrence and substance of which are
not alleged) or adverse rulings absent specific
facts demonstrating an agreement to commit the
alleged improper actions.

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Notably, Capogrosso sued Director Tonelli and2
Disciplinary Counsel Moody in their official capacities.
7
Id. at 1481 (internal citations and quotation marks omitted).
Here, Capogrosso alleged only that Judge Fast interacted with
Judge Iglesias after presumably hearing her discuss her case in
a hallway, and that Judge Iglesias’ subsequent adverse ruling
gives rise to an inference of conspiratorial conduct. The District
Court reasoned that, without more, Capogrosso failed to state a
cognizable claim under § 1983. We agree.
III
We turn next to Capogrosso’s claims against the ACJC,
Disciplinary Counsel Moody, and Director Tonelli (collectively,
“ACJC”). At the outset, we note our agreement with the2
District Court’s analysis concerning the overlap between
Capogrosso’s § 1983 claims against ACJC and her identical
Fourteenth Amendment claims. Inasmuch as § 1983 affords a
remedy for infringement of one’s constitutional rights, identical
claims raised under the Fourteenth Amendment are redundant,
rendering the outcome of the § 1983 claims dispositive of the
independent constitutional claims. See Rogin v. Bensalem
Twp., 616 F.2d 680, 686-87 (3d Cir. 1980).
In dismissing Capogrosso’s claims against the ACJC, the
District Court reasoned that the entity and its employees are
entitled to Eleventh Amendment immunity. The Eleventh
Amendment to the United States Constitution protects an
unconsenting state or state agency from a suit brought in federal

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court, regardless of the relief sought. See MCI Telecomm.
Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491, 503 (3d Cir.
2001). This immunity does not extend to individual state
officers sued in their individual capacities for prospective
injunctive or declaratory relief to remedy ongoing violations of
federal law. See id. Inasmuch as Capogrosso sought relief
against the ACJC and its employees only in their official
capacities, dismissal of her claims was appropriate. See Hirsh
v. Justices of Sup. Ct. of California, 67 F.3d 708, 715 (9th Cir.
1995). To the extent that Capogrosso’s pro se complaint can be
read to include claims against Director Tonelli and Disciplinary
Counsel Moody in their individual capacities, they are entitled
to quasi-judicial immunity and thus not subject to suit for
injunctive relief. See id. Thus we agree with the District
Court’s dismissal of Capogrosso’s § 1983 and Fourteenth
Amendment claims. Accordingly, the District Court properly
dismissed Capogrosso’s five claims for attorney’s fees and costs
based on the alleged constitutional violations.
IV
Lastly, we address Capogrosso’s claim that New Jersey
Court Rule 2:15 violates the New Jersey Constitution. In
dismissing that claim, the District Court reasoned that
Capogrosso failed to state a claim cognizable under § 1983, as
that provision only provides remedies for a deprivation of a
person’s “rights, privileges or immunities secured by the
Constitution or laws of the United States.” 42 U.S.C. § 1983;
see Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)

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Inasmuch as Capogrosso invoked the District Court’s3
supplemental jurisdiction over a related state law claim, we
understand the District Court to have declined to exercise it.
See 28 U.S.C. § 1367(c).
9
(quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)). We3
agree.
The District Court further reasoned that even if
Capogrosso had raised a claim under the United States
Constitution, the claim would still be dismissed because her bare
allegation that the ACJC’s confidential procedures facilitate
improper decisions failed for the same reason as her “judicial
conspiracy” claim. That is, her mere labeling of the ACJC’s
practices as unconstitutional, without greater factual support,
was insufficient to support a claim for relief under § 1983.
Again, we agree.
Accordingly, and for the foregoing reasons, we will
affirm the judgment of the District Court. The Appellees’
motion to file a supplemental appendix and to supplement the
record is denied. Appellant’s motion for leave to file a
supplemental appendix is denied. Appellant’s motion for leave
to file a reply brief out of time and to file an overlength reply
brief is granted. Appellant’s motion for a protective order and
for an expedited decision is denied. See Fed. R. App. P. 8(a); 3d
Cir. L.A.R. 4.1. Appellant’s motion for oral argument is denied.

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