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


5-11-2005

Gonzalez v. Feiner
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1160




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                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             NO. 02-1160
                          ________________

                      JACQUELINE GONZALEZ;
                        MADELINE RAWLES

                                    v.

          USHER FEINER, LAKEWOOD POLICE CHAPLAIN;
  LAKEWOOD POLICE DEPARTMENT; MICHAEL LYNCH, POLICE CHIEF;
JOHN MARSHALL, SR., DEPUTY CHIEF, INDIVIDUALLY AND AS A POLICE
        OFFICER FOR THE CITY OF LAKEWOOD, NEW JERSEY;
  LAKE WOOD OFFICER, UNKNOWN POLICE OFFICER FOR THE CITY OF
LAKEWOOD TOWNSHIP; LAKEWOOD TOWNSHIP POLICE COMMISSIONER;
       SAMUEL MAYER; BIAS KAILA TORA PREP HIGH SCHOOL;
          YISROEL SCHENKOLEWSKI, POLICE CHAPLAIN;
                   GITAL/DAVID KALUSZYNER

                             Jacqueline Gonzalez,

                                  Appellant
              ____________________________________

             On Appeal From the United States District Court
                     For the District of New Jersey
                     (D.N.J. Civ. No. 00-cv-1172)
                  District Judge: Garrett E. Brown, Jr.
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                            May 29, 2003

        Before: ROTH, MCKEE AND AMBRO, CIRCUIT JUDGES

                         (Filed: May 11, 2005)
                                  ____________________

                                          OPINION

                                _______________________




PER CURIAM

       Jacqueline Gonzalez appeals the order of the United States District Court for the

District of New Jersey granting the defendants’ motion for summary judgment and

dismissal for failure to state a claim, and issuing a pre-filing injunction.

       On March 10, 2000, with co-plaintiff Madeline Rawles,1 appellant Jacqueline

Gonzalez filed a civil rights complaint, claiming that members of the Lakewood Police

Department and various private individuals violated her rights under the Civil Rights Act

of 1964, 42 U.S.C. §§ 1983 and 1985(3), and the Equal Protection Clause of the 14 th

Amendment.

       Gonzalez’s claims arise out of an incident that occurred during an orthodox Jewish

community’s observance of the holiday of Purim. On March 12, 1998, while driving

through a neighborhood in Lakewood, New Jersey, Gonzalez and Rawles noticed

numerous figures hanging from trees on the private properties of certain defendants.

Gonzalez and Rawles, both African-Americans, associated the display with “the history

of Black men hanging from Oak Trees by the Whites of the South.” They claimed that



       1
           Rawles has filed a separate appeal. See C.A. No. 02-1571.

                                               2
the hanging figures were racist, offensive, an insult to their civil rights, and a threat to all

persons of color. When they tried to photograph the figures at the Bias Kaila Tora Prep

School, they were accosted by eight men dressed in very colorful clothing, chanting in a

foreign language, and waving their hands in the air. Meanwhile, their car was blocked

from exiting by a parked car owned by defendant Feiner. They claimed that a man

wearing a ski mask who was sitting in the driver’s seat of Feiner’s car, pointed a gun at

them, temporarily preventing them from leaving the scene. Once the two women made it

into their car, defendant Mayer approached them, pointing two fingers at them in a

threatening manner. At some point, Gonzalez and Rawles were able to leave. They

drove to another property to photograph hanging figures on trees, where a little boy

pointed a gun with a red barrel at them while a number of adults looked on. Gonzalez

and Rawles immediately reported these incidents to the Lakewood Police, who allegedly

did not investigate the matter nor bring charges against the defendants.

       Gonzalez claimed two § 1983 conspiracies and one § 1985(3) conspiracy: (1)

defendant Feiner and the unidentified masked driver conspired to block Gonzalez’s exit

from the scene in violation of § 1983; (2) defendants Mayer, the Bias Kaila Tora Prep

School, the Kaluszners, Schenkolewski, and Topas conspired with John Marshall, Deputy

Chief of the Lakewood Police, to deprive Gonzalez of her Equal Protection rights in

violation of § 1983; and (3) Mayer, the Bias Kaila Tora Prep School, the Kaluszners, and

Schenkolewski, conspired with Police Chief Lynch and Deputy Chief Marshall of the



                                                3
Lakewood Police to violate her civil rights. She also claimed false imprisonment and

intentional infliction of emotional distress.

       In July 2000, the District Court granted defendant Topas’s motion to dismiss

Gonzalez’s original complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and

denied dismissal as to the remaining defendants.2 Upon completion of discovery, the

defendants filed a motion for summary judgment and to dismiss. The District Court

granted the motion in favor of all defendants. The District Court dismissed Count V of

Gonzalez’s Complaint for failure to state a claim upon which relief can be granted under

the Civil Rights Act of 1964, 42 U.S.C. § 2000a. Viewing the facts in the light most

favorable to Gonzalez, the District Court held that there was no evidence to establish

under § 1983 that any of the Lakewood Police Department defendants deprived Gonzalez

of her rights granted by the Equal Protection Clause. The District Court found that there

was no record evidence to support Gonzalez’s claim that the Lakewood Police




       2
          To the extent that Gonzalez appeals the order dismissing the complaint as to
Topas, we will affirm. Gonzalez claims that Topas conspired with other individuals and
certain members of the Lakewood Police to deprive Gonzalez of her civil rights. The
allegations against Reuel Topas, an attorney, pertain to his representation of certain
defendants in a related Municipal Court proceeding. His representation of certain
defendants in municipal court, alone, does not render Topas a “person acting under color
of state law” under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (a
private attorney, even if appointed and paid for by the state, is not acting under color of
state law when performing his function as counsel). And, we find no other evidence on
this record of any nexus between Topas and the Lakewood Police sufficient to establish
that Topas conspired with the Lakewood Police to deprive Gonzalez of her civil rights
under §§ 1983 or 1985(3).

                                                4
Department maintained a race-based discriminatory policy. Specifically, the District

Court found that Lakewood Deputy Chief Marshall immediately responded to and

actively investigated her complaint. He also ultimately assisted Gonzalez (along with her

co-plaintiff Rawles) in filing a criminal complaint against various members of the Jewish

community, including several of the defendants. As for the § 1983 claims against Police

Chaplains Feiner and Schenkolewski, the District Court found that the record was devoid

of any evidence that either defendant acted in his capacity as police chaplain to deprive

Gonzalez of her constitutional rights, and thus Gonzalez failed to state a § 1983 claim

against these defendants. Finally, the District Court dismissed all of the remaining claims

against the private property owners upon whose land the trees with hanging figures were

located, because actions of private citizens, without any showing of state action, do not

give rise to a cognizable § 1983 claim.

       By order entered on December 10, 2001, the District Court dismissed the

Complaint, declining to exercise jurisdiction over the state law claims. Based on

Gonzalez’s history of filing at least six frivolous lawsuits since 1993, and on a finding

that such frivolous lawsuits are a waste of the court’s valuable assets of time and attention

to other litigants, the District Court also issued an injunction restraining Gonzalez from

making any new filings in the District Court for the District of New Jersey without first




                                              5
obtaining the District Court’s approval. Gonzalez filed a timely notice of appeal.3    4




       We exercise plenary review over an order granting summary judgment. GFL

Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198-99 (3d Cir. 2001). Summary

judgment is proper when there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Id. at 199. We view the evidence in the light

most favorable to the nonmovant. Id. When a movant shows the absence of a genuine

issue, however, the burden shifts to the nonmovant to present evidence sufficient to

permit a jury to find in her favor. Id. Our review of the District Court’s dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) is likewise plenary. Gallo v. City of Philadelphia,

161 F.3d 217, 221 (3d. Cir. 1998). We accept as true all factual allegations in the

complaint and will affirm a dismissal under Rule 12(b)(6) only if it is certain that no relief

can be granted under any set of facts which could be proved. Steamfitters Local Union

No. 420 Welfare Fund v. Phillip Morris Inc., 171 F.3d 912, 919 (3d. Cir. 1999). We

review the District Court’s issuance of a pre-filing injunction for abuse of discretion. In


       3
          On July 19, 2002 the District Court granted Gonzalez’s motion for extension of
time to file a notice of appeal, and thus her notice of appeal, filed on January 11, 2002, is
timely.
       4
          We have jurisdiction to consider this appeal even though the District Court did
not explicitly dispose of the “counter-claims” raised by Topas in his Answer. In his
“Answer, Affirmative Defenses and Counterclaim,” Topas raised the affirmative defense
of “the doctrine of frivolous actions” and presented three counterclaims, all of which
reiterated the factual basis supporting the affirmative defense. Because the “counter-
claims” were merely restatements of Topas’s affirmative defense, they required no further
action by the District Court, and we are satisfied that the suit was terminated upon the
entry of the District Court’s order granting summary judgment in December 2001.

                                              6
Re Packer Ave. Associates, 884 F.2d 745, 746-47 (3d Cir. 1989).

       After a careful and independent review of the record, we will affirm judgment on

all § 1983 claims as to all of the defendants for the reasons stated by the District Court in

its memorandum opinion, except with regard to Gonzalez’s conspiracy claims under §§

1983 and 1985(3), which we will discuss further below.

       We find no record evidence supporting Gonzalez’s § 1983 conspiracy claim

against Lakewood Police Chaplain Feiner and the unnamed masked man sitting in

Feiner’s car. Even assuming Gonzalez’s argument that Feiner was present when the

masked man temporarily blocked Gonzalez’s exit on March 12, 1998, we find no record

evidence of a race-based motive for the events in question or of an agreement between

Feiner and the unidentified man to deprive Gonzalez of her constitutional rights under §

1983. Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir. 1999).

       Gonzalez would be entitled to relief on her § 1983 conspiracy claim against private

defendants Mayer, the Bias Kalia Tora Prep School, and the Kaluszners if she could show

that these defendants somehow reached an understanding with at least one of the

Lakewood Police Defendants to deny Gonzalez of her civil rights. See Kost v.

Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993). “Establishing the existence of this

‘understanding,’ however, is really nothing more than another way to show state action as

required by § 1983 when a private party is alleged to have violated that statute.” Id. We

have already held that the District Court properly dismissed Gonzalez’s non-conspiracy §



                                              7
1983 claims because there is no evidence that defendants Mayer, Bias Kalia Tora Prep

High School, and Gital and David Kaluszyner, all private parties, were “acting under

color of state law” for the purposes of § 1983.5 In the absence of any evidence from

which a reasonable factfinder could determine otherwise, we find no nexus between the

Lakewood Police Defendants and the alleged actions of the private defendants such that

the private defendants may be fairly treated as “state actors.” And thus the District Court

properly granted summary judgment in the defendants’ favor as to the § 1983 conspiracy

claim.

         Likewise, with respect to the § 1985(3) conspiracy claim, we find no evidence on

this record of a conspiracy between any of the private defendants and the Lakewood

Police. Moreover, there is no evidence sufficient to raise an inference of a race-based

motive for the actions alleged in the Complaint. Griffin v. Breckenridge, 403 U.S. 88,

102 (1971).

         Turning to the injunction, we have long recognized that a pre-filing injunction is

an extreme remedy which must be “‘narrowly tailored and sparingly used.’” Abdul-

Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990) (quoting In Re Packer Ave.

Associates, 884 F.2d 745, 747 (3d Cir. 1989)). Sufficient notice and opportunity to be

heard are essential prerequisites to the entry of a pre-filing injunction. See In re Oliver,



         5
        Though appellant names a “Lakewood Township Police Commissioner” in the
caption of the complaint, there is no Police Commissioner employed within the Township
of Lakewood.

                                               8
682 F.2d 443, 445-446 (3d Cir. 1982). In Abdul-Akbar, we held that when a district court

concludes that a litigant has abused the judicial process by filing frivolous lawsuits and

will continue to file such lawsuits unless restrained, the court may enter an injunction

directing that.

       the litigant not file any § 1983 claims without leave of court and that in
       seeking leave of court, the litigant must certify (1) that the claims he wishes
       to present are new claims never before raised and disposed of on the merits
       by any federal courts, (2) that he believes the facts alleged in his complaint
       to be true, and (3) he knows of no reason to believe his claims are
       foreclosed by controlling law. Such an injunction should state that upon a
       failure to certify or upon a false certification, the litigant may be found in
       contempt of court and punished accordingly.

901 F.2d at 333.

       A pre-filing injunction is an exception to the general rule of free access to the

courts and its use against a pro se plaintiff must be approached with caution. See In re

Oliver, 682 F.2d at 445. Here the District Court sua sponte enjoined Gonzalez “from

making any new filings in the United States District Court for the District of New Jersey

without first obtaining the approval of this Court.” First, we question whether a pre-filing

injunction is warranted based on Gonzalez’s history of filing six frivolous cases in ten

years. In any event, we conclude that the District Court erred in failing to afford

Gonzalez the notice and opportunity to respond that are required when injunctions of this

type are considered. See, e.g., Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

Moreover, the injunction is too broad and it fails to properly notify Gonzalez that she

could be held in contempt and punished for violating the order. Therefore, we will vacate

                                              9
the District Court’s pre-filing injunction order.

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

all of Gonzalez’s claims as to all defendants. We will vacate the pre-filing injunction

order and remand for further proceedings in accordance with this opinion.
