Peter Cresci v. BCB Community Bank

• Court: Court of Appeals for the Third Circuit
• Decided: March 30, 2018
• Docket: 16-4394
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 16-4394 ________________

PETER J. CRESCI; JOHN DOES 1-3; XYZ CORPS. 1-5

v.

BCB COMMUNITY BANK; TIMOTHY J. MCNAMARA, Individually; CHARLES CENTINARO, Individually; OFFICE OF ATTORNEY ETHICS; JOHN DOES 1-5; JANE DOES 1-3; ABC CORP. 1-3

PETER J. CRESCI, Appellant ________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-16-cv-04780) District Judge: Honorable Jose L. Linares ________________

Submitted Under Third Circuit LAR 34.1(a) March 6, 2018

Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges

(Opinion filed: March 30, 2018) ________________

OPINION* ________________

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Peter J. Cresci sued the New Jersey Office of Attorney Ethics (the “Ethics Office”)

and two of its employees (collectively, the “Ethics Office Defendants”) alleging they

initiated attorney ethics grievances in bad faith to harass him and violated federal and

state law while conducting the investigations. He appeals the District Court’s stay of his

complaint under the abstention principles in Younger v. Harris, 401 U.S. 37 (1971), and

its progeny. For the reasons below, we affirm.

I. Background

Because we write solely for the parties, we note only those facts necessary to our

decision. The Ethics Office discharges the Supreme Court of New Jersey’s constitutional

responsibility to supervise and discipline attorneys admitted to practice law in New

Jersey. See Robertelli v. N.J. Office of Att’y Ethics, 134 A.3d 963, 967 (N.J. 2016); N.J.

Ct. R. 1:20–1. Defendant Charles Centinaro is the Director of the Ethics Office, and

Defendant Timothy J. McNamara is an Assistant Ethics Counsel with the Ethics Office.

See N.J. Ct. R. 1:20–2. As noted below, Cresci also sues BCB Community Bank.

Cresci asserts that the Ethics Office Defendants initiated attorney ethics grievances

to harass him. He brings federal and state claims and seeks damages, declaratory relief,

and injunctive relief. The District Court (1) abstained from exercising jurisdiction under

Younger and its progeny, (2) stayed and administratively terminated the action, and (3)

left Cresci the option to reopen the case after he can demonstrate that he has exhausted

the administrative and appellate remedies available to him in the related state

proceedings.

2 Cresci, an attorney, earlier sued Hudson County, New Jersey, on behalf of others.

He claims the government officials implicated in these suits—who are not defendants

here—retaliated by bringing criminal charges against him. Indeed, the Hudson County

Prosecutor’s Office charged Cresci with third-degree theft and forgery in 2013. Cresci v.

Aquino, No. CV134695KMJBC, 2017 WL 1356322, at *1 (D.N.J. Apr. 10, 2017)

(“Cresci I”). It appears that he pleaded guilty to falsifying records in exchange for

dismissal of the theft and forgery charges. Id. at *2. Cresci thereafter sued the County

and the arresting officers in federal District Court, alleging false arrest, excessive force,

false imprisonment, abuse of process, and First Amendment retaliation. In Cresci I, the

complaint was dismissed for failure to state a claim. Id. at * 11.

Cresci ties the criminal complaints brought by Hudson County to the Ethics Office

Defendants by alleging a sprawling conspiracy. For example, he asserts that Centinaro

(as noted, now the Director of the Ethics Office) worked in the Hudson County

Prosecutor’s Office, which was led by a Gaetano Gregory, who is married to a Susan

Gyess, who was hired by one of the officers who brought the criminal charges. Cresci

traces similarly the other Defendants’ supposed interest in preventing him from bringing

suits against the County.

According to Cresci, after Hudson County failed to achieve its purposes through

the criminal system, some of the Ethics Office Defendants (Cresci has not specified

which ones) purportedly turned to the Ethics Office’s attorney disciplinary process and

filed or caused to be filed against him at least four grievances (he does not say which

grievances). He asserts that a former Ethics Office investigator determined that these

3 grievances were retaliatory and politically motivated. He recalls this lawyer stated to

him, “[T]hese people really don’t like you, have you thought about moving from

Bayonne?” He says that the Ethics Office dismissed the grievances, with the last

dismissal in early 2013.

Whatever the facts may be, two things stand out. First, Cresci claims that during

the Ethics Office’s investigation of one of these grievances (again, he does not say which

grievance) a Mr. Bethka (apparently an Ethics Office employee) obtained Cresci’s

banking records from BCB Community Bank in violation of 15 U.S.C. § 6821. Second,

he claims an unidentified person deleted unidentified digital evidence in violation of the

Computer Fraud and Abuse Act along with the Wiretap Act. See 18 U.S.C. § 1030;

id. §§ 2511, 2701, 1343.

Fast forward to more recent times. Cresci claims the Ethics Office Defendants

solicited others to file more grievances against him so that they could harass him by re-

investigating the previously dismissed matters. This is a good point at which to get one

dispute out of the way. Despite Cresci’s contrary assertion, state attorney disciplinary

proceedings are pending against him. His pleadings and briefing where he alleges that

the Ethics Office Defendants filed attorney ethics grievances, started proceedings against

him, and are unlawfully re-investigating earlier grievances, conclusively establish the

existence of parallel proceedings. See, e.g., Cresci’s Br. 19 (“The notion of ‘comity’ does

not apply here as there is no state function, only individual actors misusing their positions

to abuse the process for which authority they were given, i.e. in egregious violation of

any reasonable time goals for such investigations . . . .”). The Director of the Ethics

4 Office acknowledged that his Office is investigating Cresci. Defs.’ Resp. to Sua Sponte

Order to Show Cause on Jurisdiction 2.

Also, we note that the docket for the Ethics Office lists four open disciplinary

matters in which formal hearings are pending against Cresci for allegations that he

knowingly misappropriated money from his clients in violation of New Jersey Rule of

Professional Conduct 1.15. Ethics Office, Statewide Pub. Hearing List, 39 (Jan. 31,

2018), https://www.judiciary.state.nj.us/attorneys/assets/oae/publichearinglist.pdf; see

Orabi v. Att’y Gen., 738 F.3d 535, 537 n.1 (3d Cir. 2014) (“We may take judicial notice

of the contents of another Court’s docket.”). However, these dockets were all opened in

October 2017 after Cresci filed his complaint. Id.

Cresci repeatedly represents that there are no ethics “complaints” pending against

him. See, e.g., Cresci’s Br. 10, 14, 16, 19, 24, 29; Compl. 8, 10, 11, 24; Pls.’ Resp. to

Sua Sponte Order to Show Cause on Jurisdiction 10, 14. If no complaint is pending, that

is because in New Jersey an attorney ethics complaint is issued after the Ethics Office has

completed an investigation into the potential merits of a grievance. N.J. Ct. R. 1:20 and

N.J. Ct. R. 1:20–4(a). The Ethics Office must now be investigating grievances. See N.J.

Ct. R. 1:20–3(e)(1) and (g)(1). Cresci admits as much by alleging it is re-investigating

grievances against him.

We turn to the claims pleaded by Cresci. The first four counts allege McNamara

and Centinaro unlawfully issued a criminal summons against Cresci, used excessive force

in arresting him, and provided insufficient medical care while he was in custody, all in

violation of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments,

5 42 U.S.C. §§ 1981, 1983, and 1985(2)–(3), and New Jersey Constitution Article I.1 The

fifth count alleges that the Defendants prevented Cresci from speaking, through lawsuits,

about civil rights abuses, in violation of the First Amendment and 42 U.S.C. §§ 1983 and

2000e. The sixth count sets out a barebones conspiracy allegation. The seventh count

alleges the Ethics Office and BCB Community Bank unlawfully attempted to collect a

consumer debt from him in violation of 15 U.S.C § 1692. The eighth count asserts that,

in connection with the earlier attorney disciplinary proceedings, the Ethics Office, BCB

Community Bank, and Centinaro disclosed his banking information in violation of

15 U.S.C. § 6821, et seq. The ninth count claims all the defendants are an enterprise

affecting commerce and extorted him in violation of the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1962. The final three counts allege state law

torts. Cresci’s complaint seeks money damages and asks for the “injunctive relief of

expunging the complaint, enjoining further action of the Defendants[.]” Compl. 25.

Anticipating possible abstention, it states that the facts show bad faith and that Cresci’s

alleged role as a confidential informant for the Federal Bureau of Investigation is an

extraordinary circumstance.

Facing this potpourri of claims, the District Court sua sponte ordered Cresci to

demonstrate why it should not abstain from exercising jurisdiction given what appeared

to be pending attorney disciplinary proceedings against him. Unconvinced by Cresci’s

1 It is unclear how these persons arrested Cresci given that neither is part of the group of non-defendant officials who did arrest him. However, in Cresci I the District Court dismissed what appear to be the same claims brought by Cresci against the arresting officials. 2017 WL 1356322 at *11. 6 response, the Court saw this to be the “quintessential” situation in which the Younger

abstention doctrine applies, and it stayed the action to allow the related state proceedings

to conclude. App. 6, 7–8. It did not decide whether Cresci had established bad faith,

harassment, or other extraordinary circumstances that would constitute an exception to

Younger abstention. It did, however, grant him leave to move to reopen the action after

demonstrating that he attempted to raise his federal arguments in the related state

proceedings and exhausted the available state remedies.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291. See Lui v. Comm’n on Adult Entm’t Establishments, 369 F.3d

319, 325 (3d Cir. 2004). “We exercise plenary review over the legal determination of

whether the requirements for abstention have been met. Once we determine that the

requirements have been met, we review a district court's decision to abstain

under Younger abstention principles for abuse of discretion.” Addiction Specialists, Inc.

v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005).

III. Analysis

The Younger abstention doctrine “reflects a strong federal policy against federal-

court interference with pending state judicial proceedings absent extraordinary

circumstances.” Gwynedd Properties, Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 2000

(3d Cir. 1992) (internal quotation marks omitted). A federal court should abstain under

the Younger doctrine when there are (1) ongoing state proceedings that are judicial, (2)

the proceedings implicate important state interests, and (3) the proceedings afford an

7 adequate opportunity to raise the federal claims. See Schall v. Joyce, 885 F.2d 101, 106

(3d Cir. 1989) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457

U.S. 423, 432, 435 (1982)). In these circumstances, federal courts should abstain unless

there is a showing of “bad faith, harassment, or some other extraordinary circumstance

that would make abstention inappropriate[.]” Middlesex County Ethics Comm., 457 U.S.

at 435.

Cresci’s complaint challenges the Ethics Office’s ongoing investigations of

attorney disciplinary grievances filed against him and seeks an injunction preventing

further fact-gathering. The investigations are part of its attorney disciplinary

proceedings. Id. at 426 (explaining that the New Jersey Supreme Court’s “responsibility

for licensing and disciplining attorneys” begins when the ethics committees “receive

complaints relating to unethical conduct by an attorney”). As ongoing attorney

disciplinary proceedings, they satisfy all three prongs of the Younger analysis. Id. at 436.

Cresci claims that the state attorney disciplinary proceedings do not afford him the

opportunity to raise his specific federal claims. But the District Court determined that

Cresci had not attempted to raise these issues in the state proceeding. In fact, he refuses

to acknowledge the existence of any such proceeding. “[W]hen a litigant has not

attempted to present his federal claims in related state-court proceedings, a federal court

should assume that state procedures will afford an adequate remedy, in the absence of

unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15

(1987). Cresci has not cited any state procedural law that unambiguously prevents him

from raising the federal issues.

8 Although the District Court did not consider whether the bad faith exception to

Younger abstention was appropriate, there was no abuse of discretion. Cresci claims the

state proceedings were solely to harass him, but he does not provide a basis to show that

this is one of the “extraordinary circumstances” in which “the danger of irreparable loss

is both great and immediate.” Younger, 401 U.S. at 45. There is “no evidence that the

disciplinary action against [Cresci] was frivolous, retaliatory, undertaken without a

reasonable expectation of success, motivated by illegitimate considerations, or part of

an ‘unjustified and oppressive use of multiple prosecutions.’” Feingold v. Off. of

Disciplinary Couns., 487 F. App'x 743, 746 (3d Cir. 2012) (citing Phelps v. Hamilton, 59

F.3d 1058, 1065 (10th Cir. 1995)). The lack of evidence has much to do with his refusal

to identify any past or present proceeding against him.

We do not decide whether the District Court properly abstained from considering

the portions of Cresci’s complaint challenging earlier, not-currently-pending,

investigations, as he has not argued that these may be considered separately without

interfering with the current proceedings. See In re: Asbestos Prod. Liab. Litig. (No. VI),

873 F.3d 232, 237 (3d Cir. 2017). The decision to stay the case and allow Cresci to bring

these accompanying claims later was sound. See Deakins v. Monaghan, 484 U.S. 193,

202–03 (1988).

Last, Cresci’s motion for default was properly denied in light of defendants’

outstanding motion to extend time to answer or move to dismiss. See Enron Oil Corp. v.

Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).

For these reasons, we affirm the District Court's stay of Cresci's complaint.