Earl James v. Superior Court of New Jersey Bergen County

BLD-218 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4332
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EARL JAMES,
Appellant
v.
SUPERIOR COURT OF NEW JERSEY BERGEN COUNTY;
ASSISTANT PROSECUTOR NICHOLAS OSTUNI;
HACKENSACK POLICE DEPARTMENT; POLICE OFFICER
DEMETRIUS CARROLL; DETECTIVE JENNIFER FINLEY;
CHIEF CHARLES K. ZISA; SEARGEANT THOMAS ALETTA;
UNITED STATES POSTAL INSPECTION SERVICE;
INSPECTOR PAUL COPPOLA; DAVID MASSEY, ASSISTANT
UNITED STATES ATTORNEY; PORT AUTHORITY OF NEW
YORK AND NEW JERSEY UNKNOWN AGENT(S), UNKNOWN MAILING
ADDRESS
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-04683)
District Judge: Honorable Katharine S. Hayden
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 5, 2008
Before: MCKEE, RENDELL AND SMITH, Circuit Judges
(Opinion filed: July 18, 2008)

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_________
OPINION
_________
PER CURIAM
Earl James appeals the dismissal of his pro se complaint. For the following
reasons, we will vacate the judgment of the District Court and remand for further
proceedings.
The procedural background of this case is complicated. On August 2, 2007, while
incarcerated at the Federal Correctional Institution at Allenwood, James filed a complaint
in the United States District Court for the District of New Jersey seeking damages from
various defendants for violating his rights under federal law. Attached to the complaint
were several documents, including twenty-three pages of exhibits, an application to
proceed in forma pauperis, and a document titled “Plaintiff Interrogatories to Discover
Identities and Addresses of Defendants.” These filings were docketed at D.N.J. Civ. No.
07-cv-3609. On October 1, 2007, James filed a nearly identical complaint, along with the
same twenty-three pages of exhibits, an application to proceed in forma pauperis, and a
revised set of interrogatories. These filings were docketed at D.N.J. Civ. No. 07-cv-4683.
On October 19, 2007, the District Court, acting sua sponte, issued an opinion and order in
the latter case, No. 07-cv-4683, granting the motion to proceed in forma pauperis and
dismissing the complaint pursuant to 28 U.S.C. § 1915 for failure to state a claim. The
District Court did not give James an opportunity to amend his complaint. On November

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As that order has not been entered in the docket in No. 07-cv-4683, the case in which1
the “supplemental complaint” was to have been filed, it appears that the time in which
James may appeal that order has not yet begun to run. Moreover, the District Court
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5, 2007, James filed a document captioned “Notice of Appeal” and “Motion to Amend
Original Complaint,” which was docketed as a notice of appeal from the judgment issued
in No. 07-cv-4683. No action was taken on the motion to amend.
Thereafter, while this appeal was pending, the District Court addressed the
complaint filed in No. 07-cv-3609. The District Court explained in its opinion filed on
February 7, 2008, that it had not been aware when it issued its decision in No. 07-cv-4683
that the complaint filed in that case concerned the same events as the complaint filed in
No. 07-cv-3609. Despite the similarity between the pleadings filed in these cases, the
District Court did not adopt the rationale for dismissal stated in the previous opinion.
Instead, the District Court acknowledged that the facts and claims were capable of an
alternative construction. Having determined that the complaint, alternatively construed,
failed to state a claim on which relief could be granted, the District Court dismissed the
action sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. In the order filed
on February 7, 2008, the District Court directed the Clerk to file the complaint in No. 07-
cv-3609 as a “supplemental complaint” in No. 07-cv-4683, dismissed the complaint, and
administratively terminated No. 07-cv-3609. The District Court also directed the Clerk to
file the February 7, 2008 opinion and order in both dockets, and to forward the opinion
and order to this Court. James did not appeal the February 7, 2008 order.1

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lacked authority to issue an order with respect to No. 07-cv-4683 while this appeal was
pending. See Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir. 1985) (stating that a district
court is generally not permitted to take action in a case after the filing of a timely notice
of appeal).
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We have appellate jurisdiction under 28 U.S.C. § 1291 to the extent that James is
appealing the order issued in No. 07-cv-4683. Based on our review of the record, we
conclude that the opinion accompanying that order, filed on October 19, 2007,
misconstrues several of the allegations raised in the pleadings. The facts and claims set
forth in James’ complaint are more accurately described in the District Court’s opinion
filed on February 7, 2008. In that opinion, the District Court appears to have correctly
identified the following claims in James’ pleadings: (1) his vehicle was unlawfully seized
by federal officials; (2) the defendants violated his constitutional rights by giving false
testimony before a New Jersey grand jury regarding his alleged involvement in an attempt
to commit insurance fraud and theft by deception; (3) officials from the Hackensack
Police Department and the Bergen County Prosecutor’s Office violated his constitutional
rights by conducting an inadequate investigation prior to his indictment on charges of
attempted insurance fraud and attempted theft by deception; (4) he has been maliciously
prosecuted on those charges; and (5) the defendants violated 18 U.S.C. §§ 1621-23 and
28 U.S.C. § 1746 by making false declarations in court.
Although it also appears that the District Court correctly determined in its opinion
of February 7, 2008 that James’ pleadings do not state a claim on which relief could be

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In addition to the claims discussed in the District Court’s opinion, we note that2
James has alleged that the Port Authority of New York and New Jersey (“Port Authority”)
and unnamed Port Authority agents violated his constitutional rights by not informing him
during his appearance at the Bergen County Courthouse of May 23, 2005, that the vehicle
he had driven to the courthouse had been impounded and was being held at a Port
Authority facility.
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granted, that opinion is not before us at this time, as it was filed after this appeal was
docketed. Moreover, James has not yet been provided an opportunity to file an amended2
complaint. We have held that an indigent plaintiff who has filed a complaint subject to
dismissal under § 1915 should be given an opportunity to file an amended complaint
unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 110-11 (3d Cir. 2002). The District Court did not explain why it chose to
issue a final order dismissing this case instead of allowing James an opportunity to amend
his complaint, and we are not convinced that he would be unable to state a viable claim if
given permission to file an amendment.
Accordingly, we will vacate the judgment of the District Court entered on October
19, 2007, and will summarily remand pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6 for
proceedings consistent with this opinion.

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