Third Circuit Courts of Appeals December 07, 2015 Filling

Sherri Boseski,                                          ) Case No.: 2:13-cv-02652-DMC-JAD

Plaintiff,                                                     )

Vs.                                                         ) Motion for a Transfer to the Appeal                                                                    ) Division
)

United States Department of Defense,)   Honorable Judge William Martini
North Arlington Municipality,               )

Bergen Regional Medical Center, and   )

Bergen County Public Defender            )        November 3, 2014

 

 

 
1

2

3
4                                                    Procedural  History
5

6 On October 9, 2012, my original complaint was flied in NJ State Superior Court in Bergen

7 County, Judge Powers presided.

8 On November 7, 2012 I filed a Notice of Removal to United States Federal Court.

9 On January 7, 2012 my case was remanded back to NJ State Superior Court in Bergen County.

10 I had filed numerous complaints against various judges due to gross incompetence d

11 corruption.

12 On January 30, 2013, I wrote a motion to amend, joining the Department of Defense and Bergen

13 Regional.

14 On April25, 2013, the Complaint was refiled with United States Federal Court.

15 On May 13, 2013 the Motion to Dismiss filed by Douglas F. Ciolek, on behalf of Bergen

16 Regional.

17 On May 14, 2013 Judge Cavanaugh wrote; opposition briefs due on July 1, 2013. Reply briefs.

18 will be due on July 8, 2013. Failure of the plaintiff to submit an opposition brief will
result in the

19 motion being determined on the papers submitted.

20 On July 1, 2013 A notice for a default judgment was entered by me to the court.

21 On July 3, 2013, Kelly Corrubia, on behalf of North Arlington Municipality; wrote a notice to

22 dismiss, for failure to state the cause.

23 On June 4, 2013, Request for an Oral Argument, Federal Civil RuleR 78.l(a), denied.

24 On June 17,2013, Motion to Dismiss filed by Kelly Corrubia Esq., on Behalf of North

25 Arlington, NJ.

26 On June 21,2013, Motion to Join NJ Public Defenders Office, submitted to the court.

27 On July 8, 2013 Douglas F. Cioelek, argues for a motion to dismiss, alleging I did not
prove

28 allegation of recruiter conspiring with N.Arlington municipality and gave no evidence to support

29 his claim. Court transcripts included as an exhibit in the original complaint which gave

30 prime facia evidence and is indisputable.

31 On December 16,2013 Judge Denis Cavanaugh, gives his opinion, and dismisses claims against

32 North Arlington Municipality and Bergen Regional Medical Hospital. Judge Cavanaugh goes on

33 to state that my military service is included in the calculation to file suite against North Arlington

34 Municipality and Bergen Regional Hospital, the statue would have expired on April25, 2012. I

35 filed my complaint on October 9, 2012. The statue of limitations for fraud is six-years. I also

36 argued continuous tort. Extended Statue due to time in military-service, he miscalculated

37 the date of my first filing which was in State Court of NJ, Bergen Vintage.

38
39 On Aprill, 2014; an order was written by Jerome B.Simandle; Chief Judge United States
40
41 District Court that the case will be reassigned to Judge William Martini.
42
43 On May 1, 2014; I, Sherri Boseski, re-entered Default Judgments against defendants United
44
45 States Department of Defense, North Arlington Municipality, Bergen Regional Medical Center,
46
47 and Bergen County Public Defender.
48
49 On July 29, 2014, United States Attorney General, Paul J Fishman, United States Attorney,
50
51 Answers with a motion to dismiss for lack of subject- matter jurisdiction under Rule 12 (b) (1) of
52
53 Federal Civil Rules. Citing the following points;

54 On October 21,2014, Judge William Martini U.S.D.J.; granted the defendant Department of

55 Defense motion to dismiss.

56 On November 3, 2014, notice of appeal filled with United States Federal District Court to

57 transfer to Federal Court of Appeals District III.

58 Background

59 Judge Martini gives a background that my case began on April25, 2014 and was filed against

60 the Department of Defense, North Arlington Municipality, Bergen Regional Medical Center, but

61 left out the defendant New Jersey Public Defender’s Office of Bergen County. The honorable

62 Judge Martini stated that the only defendant left was the Department of Defense.

63 The allegations of lack of investigation by the Federal authorities and CID
regarding my rape

64 are accurate. The claim of a continuous tort are accurate, overt acts of harassment, interruption of

65 Federal Services include mail tampering and have occurred and continue to occur. I have called

66 the post office investigator and inspector UROWNO gave me a case number CA112779740, no

67 one has followed up. I have been repeatedly harassed by the town and given tickets regarding my

68 property not being maintained as a means of harassment. Parking violations in front of my

69 residence are the most recent harassment, through the use of a continuous yellow curb from

70 the comer to extent of my property line which was extended this summer. These tactics are a means

71 to harass and attempt to get me to move.

n My personal property has been destroyed; including lawn furniture; a large glass picnic table

73 in my back yard has been broken. The N. Arlington police refused to file a report regarding the

7 4 incident. My bank account has been tampered with. I have been forced to pay an illegal fees

75 through Bank of America in the town of N. Arlington, which I reported to authorities and no one

7 6 followed up.

7 7 My TD Banking account when accessed through my home computer using outlook as a

7s spreadsheet, displayed what seems to be a pornographic picture. Threats of bodily harm have

7 9 occurred which I tried to report to authorities, the FBI hung up. Both local and federal authorities so have disregarded my reports for years, despite clear evidence that the threats are valid and have been carried out. I have been infected with a biological agent via my vagina during a pelvic exam. I was

83 threatened with breast cancer. Previously to the threat I had no lumps in my breast, I performed

84 regular breast exams. Several weeks later, I took a blood test, for an insurance policy for

85 TransAmerica, now I have developed breast lesions only unilaterally on the left side. According

86 to, Breast Imaging: The Requisites; written by Deborah Ikeda (2004);the possibility of unilateral

87 lesions is 3% in the whole population. Begin lesion are not usually unilateral. The possibility of

88 this occurring by chance is statistically low. I have had numerous bizarre breast studies with

89 errors which would not likely occur by chance. I also have pictures of my Mammography which

90 clearly demonstrate a lesion which should be biopsied.

91 I have no means of defending myself and even the FBI will not investigate. My lack of access

92 to police inquiry and judicial remedy is undisputable. I am scared for myself and for the direction

93 my country has taken. The fear tactic is tyranny. In addition threats to my professional licensure

94 have occurred. Acts of harassment professionally have continued which prevent me from

95 practicing successfully and have for several years. These harassment strategies are due to

96 misrepresentation and fraud by the Army.

97 Harassment by the United States Judicial System continues including due process

98 infringement, fraud, deceit and violation of doctrine and federal civil rules. Judge Martini reports

99 that all defendants have been dismissed besides the Department of Defense. Judge Martini also

100 writes a “continuous tort” has occurred alleging (1) conspiracy to commit fraud; (2) restriction of

101 trade-15U.S.C., §1; (3) breach of contract by the military; (4) assault; (5) legal malpractice; (6)

102 false arrest and imprisonment; (7) defamation, (8) libel; and (9) claims under 42 U.S.C. §§

103 1981,1983, and 1985. My motion is being dismissed due to lack of subject- matter jurisdiction

104 under Federal Rule of Civil Procedure 12(b) (1). Judge Martini agrees that I have met the burden

105 of that my claims are factual in nature regarding breech of contract. Yet Judge Martini still

106 dismisses my complaint with prejudice.

107

108

10 9

110

111

4

112 Point I; Subject-Matter Jurisdiction; Challenges to subject-matter allegations of the

113 complaint that is facially invalid.

114 Point II; Legal Argument Sovereign Immunity

115 Point III; Defendants Wrongfully Dismissed

116 Legal Arguments

117

118  Subject-Matter Jurisdiction; Challenges to subject-matter allegations of the

119 complaint that is facially invalid.

12 0 The first argument is that all my claims besides breach of contract are subject to facial

121 challenge. Several claims are mentioned in the suit (1) conspiracy to commit fraud, (2) restriction

122 of trade (3) breach of contract, (4) assault, (5) legal malpractice, (6) false arrest and

123 imprisonment, (7) defamation; (8) libel, and (9) claims 42 U.S.C. §§ 1981, 1983, 1985. I have

124 prime facie evidence, of my claims. Fraud is clearly documented through court documents that

125 are indisputable and contain the seal of court, which is self-authenticating. I have submitted

12 6 hospital records that demonstrate me being beaten by police.

127 I supplied the court with court documents which gives the name of former judge, Emil

128 Yampaglia as my counsel, which is a misrepresentation. The infamous day of my court order into

12 9 the military was the first day of my sexual assault beginning by my Army recruiter. I supplied

130 the court with evidence of DNA samples I collected from my vagina after coercive sexual

131 encounter with Sgt. Mark Rice. I have given evidence through multiple emails.

132 North Arlington, had Mark Yampaglia Esq, illegally place me in the military by court order.

133 I have been followed by Mark Yampaglia and other members of the police force, I believe this is

134 an effort to ensure my silence.

135 The 1988 Act allows a plaintiff to remove a case to federal court to diversity of the

136 participants. While in the military I was stationed at Fort Lewis in Washington State, I was re-

137 arrested after reporting being raped and once again institutionalized, forcibly medicated, and

138 forced to plea to a crime and sever six months to a felony I did not commit. The Federal

139 questions include in the original complaint are conspiracy to commit fraud, negligence, assault,

14 0 restriction of tra.de-15 U.S.C.A1, breech of contract by the military, legal malpractice, false arrest

14 1 and imprisonment, defamation, libel, 1985, 1981, 1983 claims. Also my constitutional rights

142 have been violated including the 4th , 5th , 6th, 8th, 13th, and 14th Amendments.

14 3 The 1990 Act restricts removal under 28 U.S.C. §1441 (c) to cases invoking federal and

14 4 questions:

145 Whenever a separate an independent claim or cause of action, which would be removable if

14 6 sued alone, is joined with one or more otherwise non-removable claims or causes of action the

147 entire case may be removed. According to Gibbs, 383 U.S. 715(1996), United Mine Workers v.

14 8 Gibbs. Justice Brennan’s opinions upheld the power of the federal court to decide state court

149 claims when there is diversity of jurisdiction, provided the claims share a common nucleus of

150 operative fact. I gave prima facie evidence through court documents that my 13th Amendment

151 was violated and the court has subject-matter jurisdiction.
152 Precedent has been set by prior cases such as Klay and Hellmer eta/., V Penetta eta/.,;

153 Marque! and Kendzior v. Gates eta/., Appeal in Kori Cioca eta/ v Donald Rumsfield eta/.,. for

154 the Department of Defense to be the government body to pursue matters of sexual violence in the

155 military. Each of the following cases where accepted in Federal Court in the past, which is the

156 court I am presenting the matter to. Precedent has been set and it is difficult to argue that the

157 case belongs in state court due to this fact.

158

159
160  Legal Argument Sovereign Immunity

161 Legal Argument Point II Court Lacks Subject-Matter Jurisdiction

Because Plaintiff’s

162 Claim Concerning the Federal Defendant ‘s Investigation is Barred by Discretionary

163 Function Exception to the FTCA

164 Challenges to of subject matter include (1) facial attacks, which challenge the allegations on

165 its face; and (2) factual attacks, which challenge the existence of subject-matter jurisdiction. The

166 doctrine of Sovereign immunity provides that the “United States may not be sued without its

167 consent and that that the existence of consent is a prerequisite to jurisdiction.” United States v.

168 Mitchell, 463 U.S. 206, 212(1983). Sovereign Immunity of the United States also extends to its

169 branches and agencies including the Department of Defense. See e.g. Franchise Tax Bd. V.no United States Postal Service, 467 U.S. 512,517-18 (1976); Antol v. Perry, 82 F.3d 1291, 1296 (3d

171 Circ. 1996). The Federal Tort Claims Act (“the FTCA”) operates as a limited waiver of

172 sovereign immunity.

17 3 Under the doctrine of Ex parte (1908), Young, the Eleventh Amendment is the Engl ish

17 4 analogue to the King Can Do No Wrong, providing sovereign immunity from Constitutional

175 review. The FTCA overcomes this barrier if a Federal Employee disregards public policy written.

17 6 The SAPRO guidelines were written by Congress. My recruiter Mark Rice had a legal obligation

17 7 to abide by the regulations. Failure to do so bars the DoD from the Sovereign Immunity Clause.

178

17 9 The United States does not have sovereign immunity with respect to these claims where policy

180 and procedure has already been established that report and intervention must be taken.

181 Discretionary decisions when conducting investigations, this only applies if it is up to the agent

182 and not a direct policy directive to investigate. The (FTCA) or Federal Tort Claims Act, states

183 that employees are immune from suite if they abide to policies prescribed by an institution, if that

184 policy allows for some degree of discretion when exercising it’s implementation, according to

185 United States v. Gaubert, 499 U.S. 315, 323 (1991). As per the DoD’s brief, the first test is to

186 utilize this argument when applying it to dismiss a case, is to test if the conduct is considered an

187 element of choice. (Gaubert, 499 U.S. at 322; Berkovitz, 486 U.S. at 536.) To remove the

188 conduct from the realm of discretion, a statue or regulation must both be mandatory and specific

189 such that there is no “element of judgment or choice” and ”the employee has no rightful option

190 but to adhere to the directive”, Gaubert, 499 U.S. at 322. The second step of the test requires the

191 court to determine whether the challenged conduct was or could have been “based on

192 consideration of public policy.” Id at 23 (quoting Berkovitz, 486 U.S. at 537.) I addressed the

19 3 Federal Tort Claim Act in my motion dated August 18, 2014.194
195 According to Department of Defense Directive 6495.01, which was utilized from October 6,
196 2005 to Nov 7, 2008, which is the time period which, I reported my rapes. The Department of

19 7 Defense instituted the SAPR Program, section 113, title 10 United States Code; which is a to be
198 followed under Secretary of Defense for Personnel and Readiness Memo, delineating both

199 Collateral Misconduct in Sexual Assault Cases (JTF-SAPR-OOI),”and “Increased Victim Support
200 and A Better Accounting of Sexual Assault Cases (JTF-SAPR-002),” written November 22,

201 2004. Thus these directive were in effect and still are in effect, during my service. When I
202 reported my rapes repeatedly to Command my rape, no investigation took place, my nursing

203 license was threatened, I was isolated and confined, and denied use of JAG. This goes directly

20 4 against the policy and protocol written by the DoD.

205 One requirement is the plaintiff must submit a written administrative claim with the federal

206 agency within two years after the claim accrues. 28 U.S.C. §§ 2401 (b), 2675(a); White-Squire,

207 592 F.3d at 458. This requirement cannot be waived; a plaintiffs’ failure to comply mandates

208 dismissal of the claim for lack of subject matter jurisdiction. The Plaintiff bears the burden to

209 prove compliance with the FTCA’s administrative claim requirements. Livera v. First nat’1 State

21o Bank, 879 F. 2d 1186, 1195 (3d Circ. 1989).

211 I submitted two notices of claims to the town of North Arlington. I could not continue with

212 the law suit because I was threatened with physical and sexual violence if did not comply with

213 the court order. The threat was real and carried out by involuntarily committing me after I

214 attempted to stop my involuntary servitude into the United States Army. I was held in Bergen

215 Regional a New Jersey a State run mental facility for 5 days without a judge’s order, then

216 released to go directly to Officer Basic Course.

217

218 The report of my rape was referred by CID to the same civilian office who refused to
219 take a report years ago. Evidence was submitted via email to the court. According to Fiswick v.
220 United States, 329 U.S. 211, conspiracy to commit fraud against the United States, produces a
221 continuing tort results, when the conspiracy is continuing one has to make admissible acts or

222 declarations of a conspirator against co-conspirators, but continuity of action to affect the object

223 of a conspiracy is necessary, since the conspiracy is a partnership in a crime. (18 U.S.C.A. §

224 371.) The FTCA authorizes suits only against itself not its individual agents according to Bank

225 v. Roberts, 251 F. App’x 774, 777 (3rd Cir.2007).

226

227 Federal employees have 45 days to contact and file and EO report No report was ever

228 a taken by my Command, I was denied the EO reporting process, after reporting the sexual

229 violence I endured. Instead I was reinstitutionalized and imprisoned. A forced confession was

230 derived through threat of even greater harm at the hands of the Army and misrepresentation by

231 my lawyer. In an effort to complete the process of notification of the DoD and the United States I

232 filed a legal complaint. I then notified the Attorney General of the United States, utilizing

233 Federal Civil Rule 4 and 5.
234 Agent William Schelf from CID came to my house with local police from North Arlington

235 NJ to take my statement regarding my rape. He told me he was related to powerful people within

236 the United States Military. The officer he brought with him from North Arlington, NJ stood
over

237 me in a threatening manner. No one investigated my rape accusation in law enforcement at either

238 the municipal, county, state, federal, or military level. Victim Advocacy utilized by the Army

239 refused to help me. There were no monthly updates on the status of my report.
240 How can the DoD claim Sovereign Immunity when I have not been given the opportunity to
241 submit a claim due to threat and torture. The matter cannot be dismissed with prejudice.
2 42 I have been social isolated for ye{lrs, repeatedly hospitalized and forcible drugged.I

2 4 3 The statue of limitation is not up on any of my claims due to continuous tort and is extended due

2 44 to my military service. No defendant can be dismissed.

2 4 5 Legal Argument m Defendants Wrongfully Dismissed.

24 6 You cannot dismiss defendants Bergen Regional Medical Center, North Arlington

247 Municipality, and Bergen County Public Defenders Office. The judgment to dismiss utilized the

2 48 a wrong for the statue of limitations. There were multiple violations of due process as well

249 The most recent excursion from the due process was the refusal of an oral argument by Judge

250 Martini before he made a decision. The Due Process Clause is a guarantee of fair procedure. A§

251 1983 action may be brought for a violation of procedural due process.

252 In procedural due process claims, the deprivation by state action of a constitutionally protected

253 interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is

254 the deprivation of such an interest without due process of law.

255 Parrott. 451 U.S., at 537; Carey v. Piphus. 435 U.S. 247,259 (1978) (“Procedural due

256 process rules are meant to protect persons not from the deprivation, but from the mistaken or

257 unjustified deprivation of life, liberty or property”). The constitutional violation actionable under
258 § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State

259 fails to provide due process. Therefore, to determine whether a constitutional violation has

260 occurred, it is necessary to ask what process the State provided, and whether it was

261 constitutionally adequate. This inquiry would examine the procedural safeguards built into the

262 statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous

263 deprivations provided by statute or tort law. Thus an oral argument should have been granted.

264
2 65 Rule 34. Oral Argument

266 (a) In General.

2 67 (1) Party’s Statement. Any party may file, or a court may require by local rule, a statement

268 explaining why oral argument should, or need not, be permitted.

2 69 (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who

210 have examined the briefs and record unanimously agrees that oral argument is unnecessary for

271 any of the following reasons.

272 (A) the appeal is frivolous;

27 3 (B) the dispositive issue or issues have been authoritatively decided; or

27 4 (C) the facts and legal arguments are adequately presented in the briefs and record, and the

275 decisional process would not be significantly aided by oral argument.

27 6 Due process requires that I am given an audience with the court to present evidence that the

277 court, that my claims to prime facie evidence are valid. Federal Civil Rule 34.

278
27 9
2 8 0
281 The statue of limitation period as explain ed b y Judge Cavanaugh
must be

282 tolled for the period of the Plaintiffs military serv ice” and six months
thereafter.”

283 N.J.S.A. 2A:l4-26. However, even considering the Plaintiffs military
service from

28 4 September 24, 2006 through October 15, 2009, the Complaint was not filed within the

285 applicable time period and is therefore is time-barred. Plaintiffs
complaint describes

28 6 an alleged assault and false imprisonment by North Arlington police on
November 5,

287 2003 and another alleged assault on July 3, 2004. The two-year statue of limitation

288 would have expired on November 5, 2005 and July 3, 2006, respectively. Thus, the

289 statue of limitations on these two claims expired before the Plaintiff
entered the U.S.

290 Army on September 24, 2006 and long before the Plaintiff filed this
Complaint on

291 April25. 2013. Plaintiff alleges an additional attack by North Arlington
police on

292 September 13, 2006. Plaintiff asserts that she was forcible removed from her home by

293 police officer and taken to Bergen Medical where she was allegedly
involuntarily

294 committed for five days. The statue of limitations on Plaintiffs claim
against North

295 Arlington and Bergen Medical would have been tolled until April15,2010, six months

29 6 after the end of the Plaintiffs military service. Thus, the statute of
limitations would

2 97 have expired two years later, on April15, 2012, one year before the
plaintiffs

298 complaint. As such, all of Plaintiffs claims against North Arlington
and Bergen

299 Regional Medical with respect to these incidents are time-barred and
therefore

3oo dismissed.

301 This is the wrong date I am well within the statute of limitations. Judge
Cavanaugh

302
303 continues to that my claims against North Arlington related to North Arlington on November

304
305 5, 2003 and July 3, 2004 where previously disposed of in state court. I disagree. I was

306
307 barred from act ion due to threat of bodily and sexual harm. I was

308
309 falsely imprisoned and sent directly to OBC .

310
311 The Department of Defense replied July 29, 2014. This reply was a year late, which means

312 the DOD defaulted according to Federal Civil Rule 55. The reply by Paul Fisher Esq., addressed

313 Rule 12 (b) (l) responded that I did not have subject matter jurisdiction. The second point that

314 Paul Fisher Esq., states that the plaintiff failed to file an Administrative Claim stating the

315 plaintiff bears the burden of establishing subject- matter jurisdiction, especially with claims

316 against the federal government. The DoD continues to state that the Federal Tort Claims Act,
317 28 U.S.C. § § 1346 U.S. 15, 28 (1953).

318
319 Conclusion

320 I respectfully submit this appeal. I have been suffering for a very long time with these

321 injustices. The case involves Constitutional issues including violations of the 4th, 5th, 6th, 8th, 11th,

322 131 , and 14th Amendments. Once a government and the judicial branch of government lacks all

323 respect for individual rights tyranny is the result. I ask the court to stop tyranny and respect my

324 legal dignity and overturn the federal district court’s decision and accept this case in Appellate

325 Court.

326

327 Sincerely,
328 –

329
330 Sherri Boseski RN, APN-C
331 sherriboseski@live.com
332 (201)998-6722

333

334

335

 
Sherri Boseski
2 Madison Street
North Arlington NJ 07031

November 3, 2014
United States District Court
For the District of New Jersey
50 Walnut St, Newark, NJ 07102
November 3,2014
Dear Judge William J. Martini U.S.D.J:

Enclosed is a copy of my appeal of a decision made by Judge William J. Martini dated October 21, 2014. I am notifying the court that I am appealing the decision to the Appeal Court Third Circuit located in Philadelphia at James A. Byrne United States Courthouse
601 Market Street; Philadelphia, PA 19106 through notifying the United States District Court in Newark. I was instructed to file the appeal with you which will then be filed electronically by you the New Jersey Federal Court to the third circuit court of appeals of the United States of America.

Sincerely;
Sherri Boseski RN, APN-C

Cc:

Third Circuit United States of America Federal Court

James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19106
Cc:
North Arlington Municipality

Norton, Sheehy, & Higgins P.C.
One Garret Mountain Plaza (5th Floor) Woodland Park, New Jersey 07424-3396

United States Federal District Court of NJ November 3, 2014
Page2
Cc:
Bergen Regional Medical Center
Douglas Ciolek Esq.,
201 Littleton Road
Morris Plains, NJ 07950

Cc:
Defense Department
1400 Defense Pentagon
Washington, DC 20301

Cc:
PAUL J. FISHMAN United States Attorney
By: MICHAEL E. CAMPION Assistant Uruted States Attorney
970 Broad Street, Suite 700
Newark, New Jersey 07102
Tel. (973) 645-3141970 Broad Street, 7th Floor
Newark, NJ 07102

Table of Contents

Table of Authorities……………………………………………………………b,c,d

Procedural History……………………………………………………………..1,2,3

Background …………………………………………………………………..3

Legal Argument…………………………………………………………………..5

Point I

Subject-Matter Jurisdiction; Facially Invalid…………………………………….5

Point II

Legal Argument Sovereign Immunity………………………………….6,7,8,9,10
POINT III

Legal Argument III Defendant Wrongfull y Dismissed……………………….10

CONCLUSION………………………………………………………………..13

a

Table of Authorities

Statutes

15-U.S.C. §1……………………………………………… …………….p4,5,6

42 u.s.c. §§ 1981……………………………………………………….p4,5

42 u.s.c. §§ 1983………………………………………………………..p4,5

42 U.S.C. §§ 1985………………………………………………………..p4,5

28 u.s.c. §§ 1441 ……………………………………………….. …. ……p6

28 u.s.c. §§ 2401 (b)……………………………………………………p8

28 U.S.C. §§ 2675(a)…………… ……………………………………….p8

28 U.S.C. §§ 1346……………………………………………………….p 13

Federal Civil Procedure 12(b) (1)………………………………………..p4,5

1988 Act…………………………………………………………………..p5

Federal Tort Claims Act………………………………………………….p7

Federal Civil Rule 4…………………………………………… ………..p9

Federal Civil Rule 5……………………………………………………..p9

Federal Civil Rule 34……………………………………………………plO N.J.S.A.
2A:l4-26……………………………………………………….pll Federal Civil Rule
12(b)(1)…………… …… ……………………………p12
Federal Civil Rule 55…………………………………….. …………..p 13
Amendments

Constitutional Amendment 4…………………………………………….p6,13

Constitutional Amendment 5……………………………………………p6,13

Constitutional Amendment 6………………………. …………………..p6,13

Constitutional Amendment 8……………………………………………p6,13

b
, I I I •

Constitutional Amendment 11……………………………………….p7,13

Constitutional Amendment 13 ……………………………………….p6,13

Constitutional Amendment 14………………………………………..p6,13

Cases

Gibbs, 383 U.S. 715 (1996)…………………………………………… p6

Klay and Hellmer et al ………………………………………………… p6

Marquet and Kendazior v. Gates et al………………………………….p6

Kori Cioca et al v. Donald Rumsfield………………………………….p6

United States v. Mitchell, 46 U.S. 206, 212(1983)……………………..p7

Franchise Tax Bd V. United States Postal Service, 467 U.S.

206,212 (1983)……………………………………………………….p7

Ex Parte Young………………………………. ………………………p7

United States v Gaubert,499 U.S. 315,323 (1991)…………………..p7

White-Squire,592 F 3d at 458…………………………………………p8

Livera v. First nat’l State Bank, 879 F. 2d. 1186, 1195 (3d Circ.l 989)p.8. App’x 774,777

Bank v Roberts, 251 App’x 774,777 (3rd Cir.2007)……………………p9

Policies

Department of Defense Directive 6495.01………… ………………….p8

SAPR PROGRAM section 113 title 10 United States Code…………..p8

Collateral Misconduct in Sexual Assault Cases (JTF_SAPR-001)…….p8

Increased Victim Support and Better Accounting of Sexual Misconduct

(JTF-SAPR-002)…………… …………………………………………p8

Medial References

Debra M.Ikeda (2004)The Requisites Breast Imaging; Philadelphia, Pennsylvania; Elsevier
Mosby

 

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
SHERRI BOSESKI,

Plaintiff,
v.
Civ. No. 2:13-02652 (WJM)

OPINION

NORTH ARLINGTON MUNICIPALITY et al.

Defendants.
WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Sherri Boseski brings this action pro se against North Arlington Municipality, Bergen Regional Medical Center, and the Department of Defense. This matter comes before the Court on Defendant Department of Defense’s motion to dismiss for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). There was no oral argument. FED. R. CIV. P. 78(b). For
the reasons set forth below, Defendant’s motion is GRANTED.
I. BACKGROUND
On April 25, 2013, Plaintiff filed a pro se complaint against the Department of Defense (“the Federal Defendant”), the North Arlington Municipality, and the Bergen Regional Medical Center. ECF No. 1. On December 16, 2013, The Honorable Dennis M. Cavanaugh dismissed Plaintiff’s Complaint
against North Arlington Municipality and Bergen Regional Medical Center on the grounds that the claims against those entities were barred by the applicable statute of limitations. ECF No. 23.
After Judge Cavanaugh retired, the case was transferred to this Court. ECF No. 25.
The Court will limit its background discussion to allegations against the FederalDefendant because it is the only remaining defendant in this case. First, Plaintiff alleges that the Federal Defendant colluded with the Bergen County court system to force her into the Army. Compl. at 24. She further alleges that the Federal Defendant failed to investigate her
allegations that she was sexually assaulted by military personnel. Id. at 9, 10, 19. Moreover,
Plaintiff claims that the Federal Defendant obstructed justice by colluding with North Arlington to destroy evidence related to her accusations of sexual assault and tampering with other evidence related to this action. Id. at 5, 24. Seeking $10 million in damages, her complaint alleges a “continuous tort” and specifically asserts the following causes of action: (1) conspiracy to commit fraud; (2) restriction of trade – 15 U.S.C. § 1; (3) breach of contract by the military; (4) assault; (5) legal malpractice; (6) false arrest and imprisonment; (7) defamation; (8) libel; and (10) claims under 42 U.S.C. §§ 1981,1983, and 1985. Id. at 36. The Federal Defendant now moves to dismiss the Complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). ECF No. 33.1
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1). There are two types of challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the allegations of the complaint
on their face; and (2) factual attacks, which challenge the existence of subject-matter jurisdiction, quite apart from any pleadings. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d
884, 891 (3d Cir.1977). In reviewing a facial attack, the court must consider the allegations of the complaint in the light most favorable to the plaintiff. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); PBGC v. White, 998 F.2d 1192,1196 (3d Cir. 1993). In reviewing a factual attack, the court may consider evidence outside the
pleadings, and no presumptive truthfulness attaches to the plaintiff’s allegations. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)). Here, the attack on Plaintiff’s tort and breach of contract claims are factual in nature, whereas the other claims are
subject to a facial challenge.
1 Notwithstanding Plaintiff’s assertions to the contrary, the Federal Defendant’s motion to dismiss
was timely. See Clerk’s Text Order dated July 18, 2014; ECF No. 33.

2

 

III. DISCUSSION
The Federal Defendant argues that the Court lacks subject-matter jurisdiction in this case because of the doctrine of sovereign immunity. The doctrine of sovereign immunity provides that “the United States may not be sued without its consent and that the existence of consent is a
prerequisite to jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Sovereign immunity of the United States also extends to its branches and agencies, including the Department of Defense. See e.g. Franchise Tax Bd. v. United States Postal Service, 467 U.S. 512, 517-18
(1976); Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). The Federal Tort Claims Act (“the FTCA”) operates as a limited waiver of sovereign immunity. See e.g., White- Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010). If certain requirements are met, it allows common law
tort actions against the United States. Dalehite v. United States, 346 U.S. 15, 28 (1953). One such requirement is that before filing suit, a plaintiff must submit a written administrative claim with the relevant federal agency within two years after the claim accrues. 28 U.S.C. §§
2401(b), 2675(a); White-Squire, 592 F.3d at 458. This requirement cannot be waived; a plaintiff’s failure to comply mandates dismissal of the claim for lack ofsubject-matter jurisdiction. See e.g., Medina v. City of Philadelphia, 219 Fed.Appx.169, 171-73 (3d Cir. 2007). Plaintiff bears the burden to prove compliance with the FTCA’s administrative claim requirements. Livera v. First Nat’l State Bank, 879 F.2d 1186, 1195 (3d Cir. 1989).
Plaintiff has not met her burden here. While Plaintiff vaguely alleges that she reported her claim to military authorities, she does not dispute that she did not file an administrative claim in writing with the Federal Defendant pursuant to the FTCA. Moreover, the Federal Defendant has
submitted a sworn declaration indicating that it never received an administrative claim from Plaintiff. McConahy Decl. at ¶ 2. Consequently, this Court lacks subject-matter jurisdiction under
the FTCA to hear Plaintiff’s tort claims against the Federal Defendant. Because Plaintiff failed to comply with FTCA requirements, she is “forever barred” from bringing her tort claims and the
dismissal is with prejudice. See 28 U.S.C. § 2401(b).
Plaintiff’s breach of contract claim must be similarly dismissed. While it is difficult to discern the substance of Plaintiff’s claim, it appears that as a former military service member suing for monetary relief, Plaintiff seeks compensation under the enlistment contract she entered into with
the U.S. Army. Under the “Little Tucker Act,” federal district courts have jurisdiction over certain non-tort claims (including breach of contract) against the United States that do not exceed
$10,000. See 28 U.S.C. § 1491. Former members of the military services have used the Little Tucker Act as a basis of jurisdiction when suing the United States for monetary relief. See e.g.
Wyatt v. U.S., 2 F.3d 398 (Fed Cir. 1993). However, even assuming that her breach of contract claim is for less than $10,000, Plaintiff cannot maintain it against the Federal Defendant because “a service member’s entitlement to pay and other benefits is set by statute and regulation and not
by contract.” See e.g., Liber v. United States, 116 Fed.Cl. 1, *4 (Fed. Cl. 2014) (granting 12(b)(1) dismissal of plaintiff’s breach of contract claim against the Army). Moreover, the Court cannot detect any statute or regulation that would entitle Plaintiff to compensation related to her
military service.2 See id.
Finally, the doctrine of sovereign immunity also bars Plaintiff’s other claims, even after accepting all allegations in the Complaint as true. See U.S. Postal Service v. Flamingo Indus.
Ltd., 540 U.S. 736, 745 (2004) (Shearman Act does not operate as a waiver of sovereign immunity);
Quern v. Jordan, 440 U.S. 332, 341-45 (1979) (same for 42 U.S.C. §§ 1981-1988). The Court therefore lacks subject-matter jurisdiction and will dismiss the Complaint with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Federal Defendant’s motion to dismiss is GRANTED. Plaintiff’s Complaint against the Federal Defendant is DISMISSED WITH PREJUDICE. An appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J. Date: October 21, 2014

2 The Court has endeavored to liberally construe the Complaint in light of
Plaintiff’s pro se status. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

4

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

SHERRI BOSESKI,

Plaintiff,
v.

Civ. No. 2:13-02652 (WJM)

ORDER
NORTH ARLINGTON MUNICIPALITY et al.

Defendants.

THIS MATTER comes before the Court on Defendant Department of Defense’s motion to dismiss for lack
of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1);
IT IS on this 21st day of October 2014, hereby,

ORDERED that Defendant’s motion is GRANTED.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Case: 14-4534 Document: 003111803695 Page: 1 Date Filed: 11/25/2014
14-4534 Case Caption 1 November 25, 2014 12:12 PM
SHERRI BOSESKI,

Appellant
v.
NORTH ARLINGTON MUNICIPALITY; BERGEN REGIONAL MEDICAL CENTER; DEPARTMENT OF DEFENSE

Case: 14-4534 Document: 003111803696 Page: 1 Date Filed: 11/25/2014

STANDING ORDER REGARDING MOTIONS TO EXCEED THE PAGE LIMITATIONS OF THE FEDERAL RULES OF APPELLATE
PROCEDURE

Effective Immediately

PRESENT: McKEE, Chief Judge, and SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR, VANASKIE, ALDISERT, WEIS, GARTH, STAPLETON, GREENBERG,
COWEN, NYGAARD, ROTH, BARRY, and VAN ANTWERPEN, Circuit Judges

AND NOW, it being noted that motions to exceed the page/word limitations for briefs are filed in
approximately twenty-five percent of cases on appeal, and that seventy- one percent of those
motions seek to exceed the page/word limitations by more than twenty percent;

Notice is hereby given that motions to exceed the page or word limitations for briefs are strongly
disfavored and will be granted only upon demonstration of extraordinary circumstances. Such
circumstances may include multi-appellant consolidated appeals in which the appellee seeks to file
a single responsive brief or complex/consolidated proceedings in which the parties are seeking to file jointly or the subject matter clearly requires expansion of the page or word limitations.

Accordingly, it is ORDERED that a three-judge Standing Motions Panel is hereby appointed to rule on
all motions to exceed the page/word limitations for briefs since the page/word limitations, prescribed by Fed. R. App. P. 32(a)(7), should be sufficient to address all issues in an appeal.
It is further ORDERED that Counsel are advised to seek advance approval of requests to exceed the page/word limitations whenever possible or run the risk of rewriting and refiling a compliant brief. Any request to exceed page/word limitations submitted in the absence of such an advance
request shall include an explanation of why counsel could not have foreseen any difficulty in complying with the limitations in time to seek advance approval from the panel.
This order shall not apply to capital habeas cases.

By the Court,
Date: January 9, 2012

/s/ Theodore A. McKee
Chief Judge

Case: 14-4534 Document: 003111803736 Page: 1 Date Filed: 11/25/2014

MARCIA M. WALDRON CLERK

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
Website: http://www.ca3.uscourts.gov

November 25, 2014

TELEPHONE

215-597-2995
Sherri Boseski
2 Madison Street
North Arlington, NJ 07031

RE: Sherri Boseski v. North Arlington Municipality, et al
Case Number: 14-4534
District Case Number: 2-13-cv-02652
Effective December 15, 2008, the Court implemented the Electronic Case Files System. Accordingly,
attorneys are required to file all documents electronically. See 3d Cir. L.A.R. 113 (2008) and the
Court’s CM/ECF website at http://www.ca3.uscourts.gov/ecfwebsite.

To All Parties:

Enclosed is case opening information regarding the above-captioned appeal filed by Sherri Boseski,
docketed at No.14-4534. All inquiries should be directed to your Case Manager in writing or by
calling the Clerk’s Office at 215-597-2995. This Court’s rules, forms, and case information are
available on our website at http://www.ca3.uscourts.gov.

On December 1, 2009, the Federal Rules of Appellate and Civil Procedure were amended modifying
deadlines and calculation of time. In particular those motions which will toll the time for filing
a notice of appeal under Fed.R.App.P. 4(a)(4), other than a motion for attorney’s fees under
Fed.R.Civ.P. 54, will be considered timely if filed no later than 28 days after the entry of
judgment. Should a party file one of the motions listed in Fed.R.App.P 4(a)(4) after a notice of
appeal has been filed, that party must immediately
inform the Clerk of the Court of Appeals in writing of the date and type of motion that was filed.
The case in the court of appeals will not be stayed absent such notification.

The requirements for the filing of an appearance form, disclosure statement and civil appeal information statement are waived for pro se litigants.

Case: 14-4534 Document: 003111803736 Page: 2 Date Filed: 11/25/2014

Counsel for Appellee

As counsel for Appellee(s), you must file:
1. Application for Admission (if applicable)
2. Appearance Form
3. Disclosure Statement (except governmental entities)
These forms must be filed within (14) fourteen days of the date of this letter.

Attached is a copy of the full caption as it is titled in the District Court. Please review the
caption carefully and promptly advise this office in writing of any discrepancies.

Very truly yours,

Marcia M. Waldron, Clerk

By: Maria//mlr
Case Manager
267-299-4937

cc: Michael Campion, Esq.
Douglas F. Ciolek, Esq. Kelly Corrubia, Esq. Harry D. Norton Jr., Esq.

Enclosures:

Information for Pro Se Litigants
Caption