Judicial Council of the Third Circuit

COMPLAINT OF JUDICIAL MISCONDUCT

February 1, 2010

1. Complainant: Mohamed F. El-Hewie

Address: 157B Meriline Avenue, West Paterson, NJ 07424

Phone: (973) 237-0530 / Fax: (973) 237-0537

Email:

2. Name of Judge: Honorable Faith S. Hochberg

Court: District Court of New Jersey

3. Does this complaint concern the behavior of the judge(s) in a particular lawsuit or

lawsuits?

[X] Yes [ ] No

[X] Party [ ] Lawyer [ ] Neither

Complainant: Pro Se Plaintiff

Court: District Court of New Jersey

Case Number: 2:08-cv-01760-FSH-PS

Circuit Docket No.: 08-4900

4. Have you filed any lawsuits against the judge?

[X] Yes [ ] No

Complainant: Pro Se Plaintiff

Court: District Court of New Jersey

Case Number: 3:09-cv-927 (MLC),

Status of lawsuit: Dismissed on res judicata ground.

No appeal.

Table of contents

TABLE OF AUTHORITIES ………………………………………….….…… 3

BRIEF STATEMENT OF FACTS ………………………………….……….. 5

Grounds for complaint of misconduct ………….…………… 5

Question No. 1.: …………………………………………….…………….. 6

Whether the Honorable Hochberg, who was born, raised, worked, and educated in the state of New Jersey and attended the prestigious law school of Harvard, has habitually and maliciously misrepresented the subject matter and conclusions of laws of fundamental caselaws, reached outrageous conclusions, and dismissed plaintiff’s and others’ complaints?

Question No. 2.: ……………………………………………….…………….. 8

Whether the Honorable Hochberg acted improperly when asked to rectify her errors in misrepresenting Dore and D.R., Supra, by yet misrepresenting another caselaw (Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)) and reaching another outrageous conclusion?

Question No. 3.: ……………………………………………………………… 9

Whether the Honorable Hochberg acted in contempt of the Court of Appeal for the Third Circuit when she dismissed plaintiff’s remanded claims under § 1981 and when citing the same caselaw upon which the Third Circuit relied (Hennessey v. Winslow Township, 183 N.J. 593, 599 (2005)) yet reaching opposite conclusion?

Question No. 4.: ……………………………………...……………………... 12

Whether the Third Circuit has erred in underestimating the failure of the Honorable Hochberg to exhibit common sense of a reasonable person and, instead, dismissed Plaintiff’s 1983’s , 1985’s, and 1986’s claims based on technicalities?

Question No. 5.: …………………………………………………..………… 14

Whether the district court, in dismissing Plaintiff’s complaint, before and after remand, has caused unreasonable delay that disenfranchised on Plaintiff’s civil rights by frustrating a fair and accurate investigation?

Question No. 6.: ……………………………………………….…………… 15

Whether the district court abused it discretion by applying collateral estoppel on the two issues, which could not have been raised in the prior proceedings?

DECLARATION AND SIGNATURE ……………………………….……… 20

Appendix ………………………………………………………...(Pa 01 – 59)
Table of authorities

A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1033 (Fed. Cir. 1992)

Briscoe v. LaHue, 460 U.S. 324, 334-35 (1983)

Carrasca, et al., v. Pomeroy, et. al., (Pages 17 and 18, USCA for the 3rd Circ, December 17, 2002, circuit No. 02-1127)

Coffman v. Glickman, Tenth Circuit, case No. 01-6203 (decided May 6 2003)

Cory v. White, 457 U.S. 85, 93 (1982)

D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1375 (3d Cir. 1992)

Dore v. Board of Educ. Of the Township of Bedminster, 185 N.J. Super. 447, 455-457 (App. Div. 1982)

El-Hewie v. Bergen County, et . al., (Case: 08-4900, decided 09/17/2009)

Florham Park Chevron, Inc. v. Chevron U.S.A.,Inc., 680 F. Supp. 159, 163 (D.N.J. 1988)

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945)

G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)

Hennessey v. Winslow Township, 183 N.J. 593, 599 (2005)

Henson v. United States, 27 Fed. Cl. 581, 591 (1993)

Hill v. Coca Cola Bottling Company of New York, 786 F2d 550, No. 136, (Docket 85-7405, The Second Circuit. Decided March 21, 1986)

Kentucky v. Graham, 473 U.S. 159, 169 (1985)

Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)

Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1109 (N.J. 2009)

Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980)

Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101-102 (1984)

Peterson v. N.D. University System, 2004 ND 82, 678 N.W.2d 163,

Long v. Samson, 1997 ND 174, ¶ 10, 568 N.W.2d 602

Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984)

Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725, 729 (1969)

Shoenfeld Asset Mgt. v. Cendent Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001)

Terry v. Ohio, 392 U.S. 1, 22-24 (1968)

Waterloov Gutter Protection Systems Co. v. Absolute Gutter Protection, LLC, 64 F. Supp.2d 398 (D.N.J.1999)

Yurecko v. Port Authority Trans-Hudson, 2003 WL 22001196 at * 2 (D.N.J. Aug. 18, 2003)

Brief Statement of Facts

Complainant is a pro se plaintiff in the civil action no.: 2:08-cv-01760-FSH-PS, which was dismissed by the Honorable Faith S. Hochberg, the U.S.D.J. of the district court of New Jersey. (Pa 01-19). Plaintiff files this Complaint of judicial misconduct pursuant to 28 U.S.C. 5 §§ 351–364 to determine whether Honorable Hochberg has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.

Specifically, plaintiff raises the following claims against the Honorable Hochberg:

(1) Habitual misrepresentation of irrelevant caselaws, motivated by improper motive, and reaching outrageous conclusions, by making overstatements, lack of specificity, and based on too much uncertainties;

(2) Refusal to reverse her errors after being notified with her failure in judgment and authority;

(3) Contempt of court and reckless indifference to Plaintiff’s civil rights;

(4) Unreasonable delay frustrating accurate investigation; and

(6) Lack of capacity to deal with mixed claims or multiple identity-of-issues.

Grounds for complaint of misconduct

Plaintiff respectfully asks the Judicial Council of the Third Circuit to entertain the following six questions as grounds for reviewing the present complaint of judicial misconduct against the Honorable Hochberg.

Question No. 1.:

Whether the Honorable Hochberg, who was born, raised, worked, and educated in the state of New Jersey and attended the prestigious law school of Harvard, has habitually and maliciously misrepresented the subject matter and conclusions of laws of fundamental caselaws, reached outrageous conclusions, and dismissed plaintiff’s and others’ complaints?

Facts:

On the date of 12/10/2008, in Case 2:08-cv-01760, docket entry [56], Honorable Hochberg cited the following two caselaws and made the erroneous conclusions that follow:

1. Dore v. Board of Educ. Of the Township of Bedminster, 185 N.J. Super. 447, 455-457 (App. Div. 1982), which led to the erroneous conclusion:

“Indeed, New Jersey courts have found that failure of a school district to comply with evaluation requirements set forth in New Jersey statutes and regulations neither imposes a penalty on the district for noncompliance nor affords a provisional teacher either reinstatement or an award of damages.”

(Pa 09)

2. D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1375 (3d Cir. 1992), which led to the judge’s conclusion that:

“A violation of a state law duty, by itself, is insufficient to state a § 1983 claim.”

(Pa 08)

The Opinion of the Honorable Hochberg, in docket entry [56], held:

“Plaintiff’s claim that he is entitled to teacher training pursuant to N.J.A.C. 6A:9-8 similarly fails because Plaintiff does not have a protected property interest in such training. “A violation of a state law duty, by itself, is insufficient to state a § 1983 claim.” D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1375 (3d Cir. 1992).

Additionally, there is no New Jersey case law or statute to support Plaintiff’s claim that teacher training under the applicable New Jersey statutes and regulations are protected property interests. Indeed, New Jersey courts have found that failure of a school district to comply with evaluation requirements set forth in New Jersey statutes and regulations neither imposes a penalty on the district for noncompliance nor affords a provisional teacher either reinstatement or an award of damages. Dore v. Board of Educ. Of the Township of Bedminster, 185 N.J. Super. 447, 455-457 (App. Div. 2001).

(Pa 08-09)

Errors:

Dore, supra, was misdated to the year 2001 by the Honorable Hochberg. The correct date for Dore was the year 1982. Furthermore, Dore never dealt with provisional teachers, since Dore was a certified nontenured teacher, who was not employed as part of the state-residency program for provisional teachers.
Honorable Hochberg dismissed Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1109 (N.J. 2009), which was decided by the Appellate Division of New Jersey on April 2, 2008, docket entry A-5777-05T5. (Honorable Hochberg’s opinion was issued on December 10, 2008) Furthermore, Honorable Hochberg acted improperly by dismissing Plaintiff’s complaint, when confronted with the fact that Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1109 (N.J. 2009) has abandoned Dore, supra, and recognized the rights of provisional teachers for mentoring, curricular support, and evaluation and recognized Plaintiff’s rights for financial wards and reinstatement.
D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1375 (3d Cir. 1992) held:

“violation of a state law duty, by itself, is insufficient to state a § 1983 claim. Brown, 922 F.2d at 1113 (citing Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980)). Section 1983 liability arises only from a violation of federal statutory or constitutional rights under color of state law.”

Plaintiff was terminated from the state-residency program with falsified documents before attaining the summative-evaluation and certification phase at the end of 34-week of training, mentoring, and evaluation. Plaintiff’s appeal with the State Board of Education was again terminated by the Commissioner of Education on July 8, 2008. (Pa 43-45). As such, Plaintiff was not only cheated from employment, but also from teacher certification by the reckless indifference of the Commissioner of Education and the Attorney General of New Jersey for the rights of Plaintiff not to be terminated from the Provisional Teacher Program with falsified documents.

Question No. 2.:

Whether the Honorable Hochberg acted improperly when asked to rectify her errors in misrepresenting Dore and D.R., Supra, by yet misrepresenting another caselaw (Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)) and reaching another outrageous conclusion?

Facts:

On the date of 02/19/2009, in Case 2:08-cv-01760, docket entry [71],

Honorable Hochberg opined:

“it appearing that the purpose of a motion for reconsideration is “to correct manifest errors of law or fact or to present newly discovered evidence,” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985); see also, Shoenfeld Asset Mgt. v. Cendent Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001), Yurecko v. Port Authority Trans-Hudson, 2003 WL 22001196 at * 2 (D.N.J. Aug. 18, 2003); and

it appearing that Local Civil Rule 7.1(i) requires that the moving party set forth “concisely the matters or controlling decision which counsel believes the [Court] has overlooked,” G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990); and

(Pa 17)

it appearing that disagreement with the Court’s initial decision as the basis for bringing a motion “should be dealt with in the normal appellate process, not on a motion for reargument,” Florham Park Chevron, Inc. v. Chevron U.S.A.,Inc., 680 F. Supp. 159, 163 (D.N.J. 1988);

(Pa 18)

Errors:

Even though, Plaintiff motioned the district court for reconsideration prior to filing an appeal with the Third Circuit, with the facts that: (i) Plaintiff was not only nontenured teacher, but was also provisional teacher in a state-residency program; (ii) Dore, supra did not concern provisional teachers; (iii) the Commissioner of Education denied Plaintiff’s appeal in front of the State Board of Education; (iv) Leang, supra, recognized the right of provisional teachers for curriculum, evaluation, and certification; yet the Honorable Hochberg was determined to stonewall and deny reconsideration.

Question No. 3.:

Whether the Honorable Hochberg acted in contempt of the Court of Appeal for the Third Circuit when she dismissed plaintiff’s remanded claims under § 1981 and when citing the same caselaw upon which the Third Circuit relied (Hennessey v. Winslow Township, 183 N.J. 593, 599 (2005)) yet reaching opposite conclusion?

Facts:

On the date of 09/17/2009, on Page: 8 of in Case: 08-4900 Document: 00319815667, The Third Circuit held:

“We express no opinion on the issue, but note that the New Jersey Supreme Court has recognized that “thorny questions have arisen in previous cases in respect of whether preclusion of a [Law Against Discrimination] complaint is appropriate when the same LAD claim allegedly was raised in an administrative litigation before an administrative agency having concurrent jurisdiction with the [Division of Civil Rights].” Hennessey v. Winslow Twp., 875 A.2d 240, 245 (N.J. 2005).

(Pa 57)

However, on the date 01/20/10, in Case 2:08-cv-01760, docket entry [88], The Honorable Hochberg acted by dismissing plaintiff’s complaint and opined:

“the Court recognizing that the New Jersey Supreme Court has applied collateral estoppel to administrative proceedings, see Hennessey v. Winslow Township, 183 N.J. 593, 599 (2005) (“the judicial principles underlying collateral estoppel and other doctrines of issue preclusion, such as res judicata, serve important policy goals that have currency in both administrative law and judicial settings”);

(Pa 01-02)

and the Court also noting that the New Jersey Supreme Court has held that “as administrative procedures have matured in this State, courts have recognized that administrative tribunals can and do provide a full and fair opportunity for litigation of an issue for various purposes,” Hennessey, 183 N.J. at 600; and the Court finding that New Jersey courts have repeatedly held that collateral estoppel and res judicata apply to administrative proceedings; and the Court finding that the ALJ’s decision should be given preclusive effect because Plaintiff had a full and fair opportunity to litigate the same issues in the administrative proceeding that he brought in the instant action;

(Pa 02)

and the Court finally finding that Plaintiff’s § 1981 claim is dismissed as a matter of law as it is barred on the grounds of res judicata,

(Pa 03)

“The first two exceptions do not apply because the ALJ’s decision was reviewed and affirmed by the Commissioner of Education and the two proceedings involve the same facts and legal claims.

The third exception is inapplicable because there are no “differences in the quality or extensiveness of the procedures” or “the allocation of jurisdiction between them.”

The fourth exception doesn’t apply because the burdens of proof in both actions are the same.

The fifth exception is also inapplicable because the ALJ’s decision will not have an adverse impact on the public, the instant action arises out of the same set of facts as the administrative action, and Plaintiff had a full and fair opportunity to adjudicate the matter in the administrative action. Accordingly, this Court will give the ALJ’s determination preclusive effect.”

(Pa 03 - footnote)

Errors:

Honorable Hochberg’s above defiance of the warning of the Third Circuit on the subject of “thorny issues” when LAD was raised in administrative proceeding, dates to the previous warning from the Third Circuit, in Carrasca, et al., v. Pomeroy, et. al., (Pages 17 and 18, USCA for the 3^rd Circ, December 17, 2002, circuit No. 02-1127). The Third Circuit, in Carrasca, et al., v. Pomeroy, et. al., noted the following, in the Opinion of the Honorable Hochberg:

“There is too much uncertainty on this record of the state of the law with respect to state rangers’ authority to detain immigrants in this pre-September 11 period to affirm the District Court’s holding of qualified immunity on that ground. The District Court’s further statement that Pomeroy “did not violate clearly established law when he detained Plaintiffs because he reasonably believed Plaintiffs were violating state and federal laws when he witnessed them swimming in the lake after it had closed for the night,” Opinion & Order at 4 n.5, appears to be somewhat overstated as no federal law was implicated, no evidence has been called to our attention of suspicion of criminal activity which might justify a stop under Terry v. Ohio, 392 U.S. 1, 22-24 (1968), and in any event it is unlikely that a reasonable police officer would believe that a Terry stop would justify detention under chains for several hours.

If, on remand, the District Court decides to base its holding on qualified immunity, more specificity will be required as to the regulations, state statutes and /or federal statutes that a reasonable police officer would have believed authorized the Rangers’ actions taken.

As the Third Circuit has noted in Carrasca (2002), supra, the Honorable Hochberg based her decisions on “too much uncertainty”, “overstated”, and lacking “specificity”.

The Honorable Hochberg’s opinions of December 10, 2008, February 19, 2009, and January 20, 2010, (in Case No.: 2:08-cv-01760, docket entries [56], [71], and [88]) have all been inflicted with the same deficiencies noted above, namely: uncertainty, overstatement, and lack of specificity. (Pa 01-19)

Question No. 4.:

Facts:

In El-Hewie v. Bergen County, et . al., (Case: 08-4900, decided 09/17/2009) the Third Circuit dismissed the pro se appellant’s federal claims based on technical errors, while appellant was questioning the lack of sound judgment of the Honorable Hochberg, as a whole. In El-Hewie, Supra, (Pa 53 – footnote) The Third Circuit opined:

“El-Hewie makes “no mention of any errors by the District Court that would . . . [warrant] overturn[ing] the District Court’s Decision as it pertains to the County of Bergen and Dennis McNerney.” We granted that motion, and now hold that El-Hewie has waived his claims against those parties. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003).

The District Court also concluded that the Attorney Defendants were immune from suit pursuant to the “litigation privilege,” that the Administrative Law Defendants were entitled to judicial immunity, and that the State Defendants were immune from suit under the Eleventh Amendment. El-Hewie has waived any challenge to these determinations because he failed to meaningfully raise these issues in his opening brief. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)

(“An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.” (internal quotation marks omitted)).”

(Pa 53 – footnote)

Errors:

1. The Third Circuit allowed the Honorable Hochberg to dismiss Plaintiff’s claims against the state officials who failed to administer the State Provisional Teacher Program and who permitted corrupt school officials to abuse and discriminate against minorities. The Circuit Court failed to spot the overzealous inclination of the Honorable Hochberg to dismiss civil rights’ complaints without allowing plaintiffs to amend their complaints to sue the state officials in their individual capacities.

2. The Circuit Court might have aided the Honorable Hochberg to rise to a state of tyranny and defiance by omitting the evident lack of common sense of the Honorable Hochberg. Where the Honorable Hochberg erred in applying Dore, supra, on alternate route teachers and abandoning Leang, supra, (which was the only viable caselaw dealing with the Provisional Teacher Program), the Third Circuit remanded Plaintiff’s case to the same Honorable Hochberg, for the purpose of answering the question on “the effect of administrative proceeding on the state law”, knowing that the Honorable Hochberg has demonstrated unreasonable judgment, since the year 2002’s Carrasca, supra.

3. The Third Circuit might have aided the Honorable Hochberg, in permitting legal malpractice of the two board attorneys to go unpunished, by omitting the difference between private attorneys and board attorneys who sit on the meetings of the boards of education as legal consultants. Plaintiff sued the two board attorneys who misled the board of education of respondent to eliminate provisional teachers from the state-approved Provisional Teacher Program, without certification or mentoring. Yet, both the Honorable Hochberg and the Third Circuit omitted the clear distinction between legal consultants, acting prior to the rise of litigation, and attorneys, defending litigants after litigations ensued.

Question No. 5.:

Whether the district court, in dismissing Plaintiff’s complaint, before and after remand, has caused unreasonable delay that disenfranchised on Plaintiff’s civil rights by frustrating a fair and accurate investigation?

Facts:

Plaintiff’s legal matter with the district court has been subjected to undue delays since April 9, 2008, due to the failure of the Honorable Hochberg to read or understand any legal submission made by the pro se plaintiff. Instead, the Honorable Hochberg copied and pasted all her citations from defendants’ briefs in a robotic-rubber stamping style and without attempting to ascertain the accuracy of her citations. (Pa 01-19). Such unreasonable delay by the Honorable Hochberg placed Plaintiff is dismal unemployment circumstances and deprived him from teacher certification. See Henson v. United States, 27 Fed. Cl. 581, 591 (1993). (recognizing that unreasonable delay may “‘undermin[e] the court’s ability to judge the facts’” (quoting A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1033 (Fed. Cir. 1992)).

Errors:

Plaintiff was one of four teachers of mathematics who were cheated from the Provisional Teacher Program, in the school year 2005/2006 alone, by Patricia Cosgrove. Since June 30, 2006, Plaintiff has been entangled in the current legal action due to the unlawful termination from teacher certification proceeding. Plaintiff was not only deprived from employment, but was also denied teacher licensure. As such, the Honorable Hochberg has inflicted undue economic harm on plaintiff by delaying Plaintiff’s teacher certification and employment’s matter since April 9, 2008.

Question No. 6.:

Whether the district court abused it discretion by applying collateral estoppel on the two issues, which could not have been raised in the prior proceedings?

Facts:

Plaintiff’s case was “mixed” or of “multiple-identity-of-issues” because Plaintiff sued in the administrative law proceeding on the issue of “improper termination” from the state-Provisional Teacher Program and “racial discrimination”. On the conclusion of the administrative law proceeding, Plaintiff filed a complaint in the district court. Plaintiff sued the ALJ and the Commissioner of Education for their cover up on the egregious and fraudulent termination of minority teachers by the school principal, who was secretively removed from her position with the blessing of the Commissioner of Education.

Plaintiff’s federal claims entailed the following additional issues not raised in the administrative proceedings:

(A) The concealment, from the court, of facts essential to the administration of justice, by the respondent’s attorneys of the removal of the school principal Patricia Cosgrove from her position, on June 29, 2007 while the administrative proceeding was underway between March 19 through June 6, 2007.

(B) The termination of Plaintiff’s appeal with the State Board of Education by the Commissioner of Education, on July 8, 2008, that precluded Plaintiff from supplementing the trial record and adjudicating his matter in front of the most specialized appeal body on educational matter.

In lieu of accounting for the identity-of-issues between the administrative and the federal proceeding, on 12/10/2008, in Case 2:08-cv-01760, docket entry [56], The Honorable Hochberg opined:

“The Court finds that the issue to be litigated in this action - whether Defendants’ articulated reason for not renewing Plaintiff’s contract, poor work performance, was pretextual and not the true reason for deciding not to renew the contract - was the precise issue before the ALJ.

The Court next finds that there was a final decision on the merits because the Commissioner of Education has already affirmed the ALJ’s decision. See N.J.S.A. 18A:6-9.1.

There is no question that Plaintiff and Defendants were parties to the prior action. Plaintiff does not dispute that he had a full and fair opportunity to litigate the issues in question during the prior proceeding nor that the proceedings before the ALJ were judicial in nature. Accordingly, the Court finds that Plaintiff had a full and fair opportunity to litigate the issues in question.

(Pa 13)

The claims against the attorneys who represented the Bergen County Board of Education of the Vocational Schools are dismissed because they are immune from suit pursuant to the litigation privilege. Briscoe v. LaHue, 460 U.S. 324, 334-35 (1983) (recognizing the common-law litigation privilege extends not only to judges, government attorneys, and witnesses, but to private attorneys). The litigation privilege extends to communications “(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Waterloov Gutter Protection Systems Co. v. Absolute Gutter Protection, LLC, 64 F. Supp.2d 398 (D.N.J.1999). Plaintiff alleges that the Board attorneys somehow violated his rights while representing the Board during Plaintiff’s non-renewal process, and in defending the Board against Plaintiff’s claims. This is precisely the type of conduct anticipated by the litigation privilege and which it protects. Accordingly, the claims against the Board attorneys are dismissed.

(Pa 05 – footnote)

Plaintiff’s claims against the state defendants are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101-102 (1984) (“[A] suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief.”). There is no question that the New Jersey Department of Education and the Department of Law and Public Safety are all entities or instrumentalities of the State, none of which have consented to suit. Therefore, each is entitled to immunity pursuant to the Eleventh Amendment. Id. Additionally, the individual state defendants, the Commissioner and Acting Secretary of Education were both sued in their official capacities. Accordingly, they are also immune from suit under the Eleventh Amendment. Cory v. White, 457 U.S. 85, 93 (1982); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945).”

(Pa 06 – footnote)

Plaintiff’s case of multiple filing between the administrative and judicial proceedings is not peculiar in the legal system, as follows.

In Coffman v. Glickman, Tenth Circuit, case No. 01-6203 (decided May 6 2003) the court held:

“Although the ALJ concluded that [Plaintiff] had not proved his claims, and therefore the claims were effectively "eliminated," such determination is not synonymous with a failure to exhaust administrative remedies. [Plaintiff] fully exhausted his administrative remedies in the MSPB appeal process. [Plaintiff] was required to plead and present evidence in support of his unlawful discrimination claims, which he did. However, he was not required to prevail on such claims in order for the case to remain a "mixed case" subject to de novo review.

In Hill v. Coca Cola Bottling Company of New York, 786 F2d 550, No. 136, (Docket 85-7405, The Second Circuit. Decided March 21, 1986). (paragraph # 13), the court opined:

“Two questions control whether New York will apply the doctrine of collateral estoppel. First, is the issue to be decided in the second action identical to an issue necessarily decided in the earlier proceeding? Second, did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue in that earlier proceeding? See Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984); Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725, 729 (1969).

Since we conclude that [Plaintiff] did not have a full and fair opportunity to litigate his discrimination claim in the earlier state proceeding, making it unnecessary to address the identity-of-issues question, we agree with the district court that [Plaintiff] is not collaterally estopped from raising his discrimination claim in this action. He is, however, collaterally estopped from relitigating his violation of company policy, which must be accepted as established for the purposes of the present action. Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 827, 467 N.E.2d at 491.

In Peterson v. N.D. University System, 2004 ND 82, 678 N.W.2d 163, the court opined:

[Plaintiff] was required to exhaust her administrative remedies before she could bring an action in district court. See Long v. Samson, 1997 ND 174, ¶ 10, 568 N.W.2d 602 (dismissed public employees must exhaust their administrative remedies before seeking damages for tort or contract claims).

Errors:

The opinion of the Honorable Hochberg, that the Commissioner of Education or the ALJ could provide safeguards on the constitutional rights of Plaintiff, should have been viewed on the context that the same Honorable Hochberg has repeatedly erred in applying the four caselaws: Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1109 (N.J. 2009), D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1375 (3d Cir. 1992), Dore v. Board of Educ. Of the Township of Bedminster, 185 N.J. Super. 447, 455-457 (App. Div. 1982), and Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). As if, the Honorable Hochberg who failed to uphold the basic premises of Leang, supra, could demonstrate that a bureaucratic Commissioner of Education or an ALJ acting in bench trial where Plaintiff was self-represented, would uphold the constitutional rights of Plaintiff according to any reasonable standards of administering justice. (Pa 39-42)

As a matter of fact, the Appellate Division of the Superior Court of New Jersey outpaced the Honorable Hochberg it its reckless indifference to the federal and constitutional rights of plaintiff. See (Pa 50-59).

Declaration and signature

I declare under penalty of perjury that the statements made in this complaint are true and correct to the best of my knowledge.

Respectfully submitted.

Appellant- Mohamed F. El-Hewie

Address: 157B Meriline Avenue,

West Paterson, NJ 07424

Phone: (973) 237-0530

Fax: (973) 237-0537

Date: February 1, 2010.

Judicial Misconduct

Saturday, January 15, 2011

Suing A Judge

(1) Habitual misrepresentation of irrelevant caselaws, motivated by improper motive, and reaching outrageous conclusions, by making overstatements, lack of specificity, and based on too much uncertainties;

(2) Refusal to reverse her errors after being notified with her failure in judgment and authority;

Question No. 1.:

“A violation of a state law duty, by itself, is insufficient to state a § 1983 claim.”

Question No. 2.:

Whether the Honorable Hochberg acted improperly when asked to rectify her errors in misrepresenting Dore and D.R., Supra, by yet misrepresenting another caselaw (Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)) and reaching another outrageous conclusion?

Facts:

Question No. 5.:

Whether the district court, in dismissing Plaintiff’s complaint, before and after remand, has caused unreasonable delay that disenfranchised on Plaintiff’s civil rights by frustrating a fair and accurate investigation?

Question No. 6.:

Whether the district court abused it discretion by applying collateral estoppel on the two issues, which could not have been raised in the prior proceedings?

In Hill v. Coca Cola Bottling Company of New York, 786 F2d 550, No. 136, (Docket 85-7405, The Second Circuit. Decided March 21, 1986). (paragraph # 13), the court opined:

Keep Dreaming