PITMAN v. OTTEHBERG et al
Filing
99
OPINION. Signed by Judge Noel L. Hillman on 1/14/2015. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
PERMAN PITMAN,
Plaintiff,
Civil No. 10-2538 (NLH/KMW)
v.
OPINION
JOSHUA M. OTTEHBERG, et al.,
Defendants.
__________________________________
APPEARANCES:
Paul R. Melletz, Esq.
Ross Begelman, Esq.
Begelman Orlow & Melletz
411 Route 70 East
Suite 245
Cherry Hill, New Jersey 08034
Attorneys for Plaintiff Perman Pitman
Matthew J. Behr, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East
Suite 300
Cherry Hill, New Jersey 08002
Attorneys for Defendant Matthew Woshnak
Elyse Glazer Crawford, Esquire
Parker McCay, PA
9000 Midlantic Drive
Suite 300
P.O. Box 5054
Mt. Laurel, New Jersey 08054
Attorneys for Defendant Harry Collins
1
HILLMAN, District Judge:
Presently before the Court is the motion [Doc. No. 54] of
Defendant Matthew Woshnak seeking dismissal of the claims in the
amended complaint that are asserted against him.
The Court
previously granted in part and denied in part a motion to
dismiss filed by Defendants Camden County Prosecutor’s Office,
Woshnak and Joshua Ottenberg 1 and granted Plaintiff leave to file
an amended complaint.
Plaintiff thereafter filed an amended
complaint, and Defendant Woshnak now seeks dismissal of the
claims set forth therein.
The Court has considered the parties’ submissions and
decides this matter pursuant to Federal Rule of Civil Procedure
78.
For the reasons that follow, Defendant Woshnak’s motion to
dismiss is granted in part and denied in part.
I.
JURISDICTION
In his amended complaint [Doc. No. 49], Plaintiff asserts
claims pursuant to 42 U.S.C. § 1983 for alleged violations of his
constitutional rights as well as state law claims for malicious
prosecution and alleged violations of the New Jersey Civil Rights
Act.
The Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331, and may exercise supplemental
1
Although named in the caption of the complaint as “Joshua
Ottehberg,” Defendants’ motion to dismiss identified this
defendant as “Joshua Ottenberg.”
2
jurisdiction over any state law claims pursuant to 28 U.S.C. §
1367.
II.
BACKGROUND
As the Court has previously explained, “[i]n this case,
Plaintiff, Perman Pitman, contends that he was wrongfully
arrested and imprisoned for a murder he did not commit.
After
spending two years in jail because he was unable to make bail,
Plaintiff pled guilty to a downgraded charge of manslaughter.
[Approximately] [t]wo years later, the Camden County Prosecutor’s
Office (“CCPO”) disclosed exculpatory evidence, at which time
Plaintiff’s Judgment of Conviction and guilty plea were vacated
and Plaintiff was released from jail.
Shortly thereafter,
Plaintiff filed the present civil action . . . based on his
wrongful arrest and subsequent prosecution.”
2, Dec. 30, 2011.)
(Op. [Doc. No. 40]
As noted above, by Opinion and Order dated
December 30, 2011, several defendants were dismissed from this
suit, and Plaintiff was granted leave to file an amended
complaint.
The essence of Plaintiff’s civil rights claims arises from
his arrest, conviction, and imprisonment for the September 2005
shooting death of Robert A. Mays (“Mays”). 2
2
Late in the evening
In the amended complaint, Plaintiff identifies the victim
as “Robert A. Mayes.” The Court notes that the documents
attached to the amended complaint indicate that the proper
spelling is “Mays.”
3
of September 26, 2005, Mays was shot and killed in Camden, New
Jersey.
(Am. Compl. ¶ 20.)
As set forth in the amended
complaint, Mays was shot three times with a .45 caliber weapon
in the back and the arm.
(Id.)
The City of Camden Police
Department and the CCPO assigned detectives to investigate the
shooting death of Mays.
(See, e.g., id. ¶¶ 12-13, 21-22, 29.)
According to Plaintiff, the CCPO 3 and the individual Defendants
“had no physical or testimonial evidence against [Plaintiff]
other than a witness” by the name of Efrain Ayala Acevedo
(“Acevedo”), and they relied solely on Acevedo’s statement to
“arrest, imprison and prosecute Mr. Pitman.”
(Id. ¶¶ 2, 43.)
On or about February 8, 2006, approximately four months
after Mays was killed, Defendant Palmira White, the Court
Administrator for the City of Camden Municipal Court, issued a
warrant for Plaintiff’s arrest for the alleged felony murder of
Mays.
(Id. ¶¶ 1, 15, 32.)
The arrest warrant was issued by
Defendant White based upon a sworn statement of probable cause
3
The Court’s December 30, 2011 Opinion and Order dismissed
all claims alleged against the CCPO in the original complaint
with prejudice based on Eleventh Amendment immunity. (Op. [Doc.
No. 40] 22, Dec. 30, 2011; Order [Doc. No. 41] 1, Dec. 30,
2011.) After Plaintiff filed his amended complaint on February
27, 2012, the parties stipulated to the dismissal of the County
of Camden from this suit without prejudice. (Stipulation of
Dismissal [Doc. No. 51] 1.) The Court further notes that the
County of Camden was not named as a Defendant in Plaintiff’s
amended complaint.
4
submitted to her by Defendant Woshnak, an investigator with the
CCPO, and Defendant Isidoro Reyes, a detective with the City of
Camden Police Department.
(Id. ¶¶ 1, 12, 13.)
Pursuant to the
arrest warrant, Plaintiff was arrested on February 9, 2006 and
charged with murder in the shooting death of Mays.
(Id. ¶ 32.)
On February 9, 2006, after he was arrested, Plaintiff provided a
statement to Defendants Woshnak and Reyes in which he admitted
that “he was present at the scene of the shootings” but denied
that he was the shooter.
(Id. ¶ 33.)
Plaintiff told the
investigators he observed a lone gunman of Puerto Rican origin who Plaintiff believed killed Mays - and who shot at Plaintiff
as Plaintiff ran away from the scene.
(Id.)
At the time he was arraigned, Plaintiff’s bail was
allegedly set so high that he was unable to post bail and
remained in prison “during the entire pre-trial process” for
nearly two years.
(Am. Compl. ¶ 44.)
During this time,
Plaintiff continued to profess his innocence, demanded
discovery, requested investigation of the crime scene, and filed
motions to dismiss the indictment against him and reduce his
bail, but was unsuccessful in his attempts.
(Id. ¶¶ 45-47.)
October of 2007, Plaintiff asserts that Defendant Collins
presented Plaintiff with a plea offer whereby Plaintiff would
plead guilty to a significantly downgraded charge of
5
In
manslaughter with a four year prison term, approximately half of
which Plaintiff had already served.
(Id. ¶ 50.)
Facing an indictment that charged him with murder, felony
murder, armed robbery, conspiracy, possession of a firearm for
an unlawful purpose and unlawful possession of a handgun,
Plaintiff represents that he “reluctantly agreed to the plea
agreement” which dismissed all of those charges in lieu of the
amended single charge for manslaughter because he was feeling
“[d]epressed, broken, . . . cornered and abused by the system”
and he had “no trial date and [there was] no end in sight[.]”
(Id. ¶¶ 50-51.)
As the Court previously noted, “[i]t now appears, by its
own admission, that the State should never have allowed
Plaintiff to plead guilty.”
2011.)
(Op. [Doc. No. 40] 5, Dec. 30,
Plaintiff asserts in the amended complaint that on
February 23, 2010, the CCPO sought Plaintiff’s immediate release
from prison and an Order vacating his conviction.
6.)
(Am. Compl. ¶
This apparently occurred because, on February 18, 2010,
during the course of responding to Plaintiff’s Petition for
Post-Conviction Relief, Teresa M. Garvey, an Assistant
Prosecutor in the CCPO, “searched the trial file” and discovered
a March 7, 2007 memorandum and an attached “sticky note”, both
written by Defendant Collins and addressed to Defendant Woshnak.
(Id. ¶ 41.)
The handwritten sticky note, attached as Exhibit G
6
to Plaintiff’s amended complaint, indicated that another
investigator with the CCPO had been advised by a jailhouse
informant that Acevedo was paid to implicate Plaintiff in the
crime. 4
Garvey brought the sticky note to the attention of her
superiors and “it was determined that the note and the
information contained therein represented exculpatory evidence
that should have been provided to” Plaintiff pursuant to Brady
v. Maryland, 373 U.S. 83 (1963).
(Id.)
The state court entered
“an Order of Nolle Pros, dated February 23, 2010, confirming
that the [CCPO] [would] ‘no longer prosecute [Plaintiff] on
behalf of the State of New Jersey for the indictment . . . and
that all proceeding[s] upon the indictment aforesaid be
altogether and forever stayed in court against [Plaintiff].’”
(Id. ¶ 52.)
4
Plaintiff also contends that Acevedo had recanted his story
three times. First, Acevedo purportedly gave an affidavit to an
investigator for the public defender on January 24, 2007, which
was turned over to Defendant Collins on February 12, 2007 and
which stated that Acevedo had no knowledge of the matter and had
no information to help either the plaintiff or the defendant.
(Am. Compl. ¶ 37; see also Ex. F.) Plaintiff further alleges
that on March 5, 2007, Acevedo told an investigator for the
public defender that he accused Plaintiff because he was afraid
of blame being placed on him. (Am. Compl. ¶ 37.) On October
13, 2007, Acevedo then purportedly told a third version to an
investigator for the public defender in which he indicated that
there was only one shooter and that he could not say for sure
that it was Plaintiff. (Id.) Although Defendants Collins and
Woshnak allegedly knew of all three of the recantations, as well
as the statement on the sticky note attached to the March 7,
2007 memorandum, Defendant Collins nonetheless presented
Plaintiff with a plea deal in October 2007. (Id. ¶ 50.)
7
Based on the foregoing, Plaintiff’s amended complaint
asserts a number of claims against various Defendants.
At this
time, the Court focuses only on the claims against the moving
Defendant, Matthew Woshnak.
Defendant Woshnak is named as a
defendant in Count I for purported Fourteenth Amendment Due
Process deprivations; Count II 5 alleging a Section 1983 claim for
malicious prosecution under the Fourth and Fourteenth
Amendments; Count IV asserting a state law claim for malicious
prosecution; and Count V asserting a claim under the New Jersey
Civil Rights Act, N.J. Stat. Ann. § 10:6-1 to -2. 6
¶¶ 60, 65, 69, 78, 81.)
(Am. Compl.
With respect to Count I, Plaintiff
asserts violations of his due process rights under the
Fourteenth Amendment through a series of sub-claims.
Compl. ¶¶ 59-67.)
(Am.
Plaintiff’s sub-claims against Defendant
5
Plaintiff’s amended complaint numbers incorrectly all of
the counts subsequent to Count II. There is a second Count II
which is more appropriately designated as Count III alleging
supervisory liability under Section 1983. (See Am. Compl. ¶¶
71-76.) Plaintiff’s state law claim for malicious prosecution
is numbered as Count V but is more properly numbered as Count IV
of the amended complaint. (Id. ¶¶ 77-79.) Finally, Plaintiff’s
claim under the New Jersey Civil Rights Act should have been
designated as Count V, rather than Count VI. (Id. ¶¶ 80-82.)
For clarity, the Court refers to the counts of the amended
complaint by their appropriate sequential roman numerals, rather
than by the non-sequential roman numerals utilized by Plaintiff.
6
Count V of the amended complaint alleges violations of the New
Jersey Civil Rights Act but does not specifically name Defendant
Woshnak as a defendant. The Court, however, construes this
claim to be asserted against this defendant because it is
brought against “[t]he individual defendants[.]” (Id. ¶ 81.)
8
Woshnak are purportedly based on the fabrication of false
inculpatory evidence, and (2) acts of coercion which resulted in
Plaintiff making a false plea.
(Id. ¶¶ 59-61, 65-67.)
III. DISCUSSION
In the present motion, Defendant Woshnak seeks the
dismissal of the claims against him pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
A.
Standard for Dismissal under Rule 12(b)(1)
Defendant Woshnak argues that Plaintiff’s Section 1983
claims are barred by the doctrine of Eleventh Amendment
sovereign immunity.
Eleventh Amendment immunity is a challenge
to this Court’s subject matter jurisdiction and, therefore, is
determined pursuant to Federal Rule of Civil Procedure 12(b)(1).
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d
Cir. 1996).
The standard to be applied when deciding a motion
under Rule 12(b)(1) depends on the nature of the motion.
Where a party argues that the complaint on its face is
insufficient to invoke the Court’s subject matter jurisdiction,
such as a claim that the complaint fails to present a federal
question or fails to demonstrate diversity of citizenship, then
the Court applies the same standard as utilized in deciding a
motion under Rule 12(b)(6).
Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 889-92 (3d Cir.
9
1977)).
In other words, the Court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d
347, 350 (3d Cir. 2005); see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“[I]n deciding a
motion under Fed. R. Civ. P. 12(b)(6), [a district court is] . .
. required to accept as true all factual allegations in the
complaint and draw all inferences from the facts alleged in the
light most favorable to” the plaintiff).
If a party argues that the court lacks subject matter
jurisdiction because of the facts of the case, such as a claim
that the plaintiff lacks standing due to mootness, the Court may
consider evidence outside of the pleadings.
757 F.3d at 358.
Constitution Party,
“[N]o presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims.”
F.2d at 891.
Mortensen, 549
In cases challenging the existence of subject
matter jurisdiction in fact, the plaintiff bears the burden of
proof that jurisdiction exists.
Id.
Here, Defendant Woshnak is making a facial attack that
Plaintiff’s claims are barred by sovereign immunity and,
therefore, the Court accepts the allegations in the amended
10
complaint as true and utilizes the standard for dismissal under
Rule 12(b)(6).
B.
Standard for Dismissal Under Rule 12(b)(6)
In considering whether Plaintiff’s complaint fails to state
a claim, the Court must accept all well-pleaded allegations in
the complaint as true and view them in the light most favorable
to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224,
228 (3d Cir. 2008) (“[I]n deciding a motion under Fed. R. Civ.
P. 12(b)(6), [a district court is] . . . required to accept as
true all factual allegations in the complaint and draw all
inferences from the facts alleged in the light most favorable
to” the plaintiff).
A pleading is sufficient if it contains “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Scheuer v.
Rhoades, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90
(1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions[.]’”)
11
(citation omitted).
First, under the Twombly/Iqbal standard, a
district court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.”
Fowler
v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Iqbal, 556 U.S. at 678, 129 S. Ct. 1937).
Second, a district
court “must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’”
Fowler, 578 F.3d at 211 (citing
Iqbal, 556 U.S. at 679, 129 S. Ct. 1937).
“[A] complaint must do more than allege the plaintiff’s
entitlement to relief.”
Fowler, 578 F.3d at 211; see also
Phillips, 515 F.3d at 234 (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
This
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556, 127
S. Ct. 1955).
“The defendant bears the burden of showing that
no claim has been presented.”
Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005).
Finally, a court in reviewing a Rule 12(b)(6) motion must
consider the facts alleged in the pleadings, the documents
12
attached thereto as exhibits, and matters of public record.
Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764, 772 (3d
Cir. 2013).
A court may also consider “‘undisputedly authentic
documents if the complainant's claims are based upon these
documents[.]’”
Id. (quoting Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010)).
If any other matters outside the pleadings
are presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56.
IV.
Fed. R. Civ. P. 12(b).
ANALYSIS
A.
Eleventh Amendment Sovereign Immunity
Defendant Woshnak argues that he is absolutely immune from
suit in federal court under the Eleventh Amendment.
He
specifically contends that as an employee of the CCPO, he is an
agent of the State of New Jersey and, as such, is an arm of the
State for Eleventh Amendment purposes.
(Br. in Supp. of Mot. to
Dismiss Pl.’s Complaint, With Prejudice, for Failure to State a
Claim (hereafter, “Def.’s Br.”) 11.)
In its Opinion dated
December 30, 2011, the Court previously addressed Eleventh
Amendment immunity in connection with Plaintiff’s claims against
the CCPO and Defendant Ottenberg, who at the time was the Camden
County Prosecutor.
(Op. [Doc. No. 40] 13, Dec. 30, 2011.)
The
Court concluded that Plaintiff’s claims against the CCPO and
Defendant Ottenberg in his official capacity were barred by the
13
doctrine of sovereign immunity, and these claims were dismissed
with prejudice.
2011.)
(Id. at 22, 24; Order [Doc. No. 41] 1, Dec. 30,
The claims against Defendant Ottenberg in his individual
capacity were dismissed without prejudice, because the complaint
failed to describe with sufficient particularity the nature of
his alleged involvement in the events at issue in this case.
(Op. [Doc. No. 40] 30-31, Dec. 30, 2011.)
Defendant Woshnak
argues that because he too is an employee of the Prosecutor’s
Office, the claims against him should be dismissed for the same
reasons the claims against Defendants Ottenberg and the CCPO
were dismissed.
(Def.’s Br. 11.)
The Court set forth the law regarding the Eleventh
Amendment in detail in its December 30, 2011 Opinion.
generally Op. [Doc. No. 40] 13-15, Dec. 30, 2011.)
(See
The Eleventh
Amendment to the United States Constitution provides that, “The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another State,
or by Citizens or Subjects of any Foreign State.”
amend. XI.
U.S. Const.
As a general proposition, a suit by private parties
seeking to impose liability which must be paid from public funds
in a state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute.
14
See, e.g., Edelman v.
Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662
(1974).
The Eleventh Amendment protects states and their
agencies and departments from suit in federal court regardless
of the type of relief sought.
Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67
(1984).
Section 1983 does not override a state's Eleventh
Amendment immunity.
Quern v. Jordan, 440 U.S. 332, 345, 99 S.
Ct. 1139, 59 L. Ed. 2d 358 (1979).
To determine whether Eleventh Amendment immunity applies to
a state agency, a court must consider three factors: (1) the
source of the agency's funding — i.e., whether payment of any
judgment would come from the state's treasury; (2) the status of
the agency under state law; and (3) the degree of autonomy from
state regulation.
See Fitchik v. New Jersey Transit Rail
Operations, Inc., 873 F.2d 655, 659 (3d Cir.) (en banc), cert.
denied, 493 U.S. 850 (1989).
In Coleman v. Kaye, 87 F.3d 1491,
1500-02 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 117 S. Ct.
754, 136 L. Ed. 2d 691 (1997), the Third Circuit Court of
Appeals recognized that county prosecutorial offices conduct two
distinct sets of functions: (1) the administrative functions of
operating their offices and (2) the classic law enforcement and
investigative functions for which they are chiefly responsible.
The Third Circuit's analysis culminated in the conclusion that
“when [New Jersey county] prosecutors engage in classic law
15
enforcement and investigative functions, they act as officers of
the state.”
Id. at 1505.
In this case, as the Court noted in its December 31, 2011
Opinion, the first Fitchik factor is satisfied when the money to
pay a judgment in a case would come from the state.
873 F.2d at 659.
Fitchik,
Although county prosecutors act as agents for
both the State and the county that is the situs of their office,
the State is obligated to pay “the county prosecutors and their
subordinates’ defense costs and to indemnify them if their
alleged misconduct involved the State function of investigation
and enforcement of the criminal laws.”
N.J. 422, 455, 778 A.2d 443 (2001).
Wright v. State, 169
On the other hand, “when
county prosecutors are called upon to perform administrative
tasks unrelated to their strictly prosecutorial functions, such
as a decision whether to promote an investigator,” then the
county prosecutor acts on behalf of the county and is not
entitled to indemnification by the State.
See id. at 454.
Plaintiff contends that the first Fitchik factor does not
weigh in favor of a finding of Eleventh Amendment immunity,
because the State is not obligated to pay a judgment against a
state officer where, as alleged here, the officer’s conduct
purportedly involves actual fraud, actual malice or willful
misconduct.
(See Br. in Opp. to Mot. to Dismiss Pl.’s Compl.,
with Prejudice, for Failure to State a Claim (hereafter, “Pl.’s
16
Opp. Br.”) 16-19.)
In Wright, the New Jersey Supreme Court held
that “the State of New Jersey may be required to indemnify and
defend [the] prosecutors and their subordinates for tortious
conduct committed during the investigation, arrest, and
prosecution of [a defendant], under the relevant provisions” of
the New Jersey Tort Claims Act.
A.2d 443.
Wright, 169 N.J. at 456, 778
The Supreme Court also noted, however, that “the
State's duty to indemnify and defend county prosecutors and
their subordinates is limited to acts or omissions that do not
involve actual fraud, actual malice or willful misconduct[.]”
Id. (citing N.J. Stat. Ann. § 59:10A and § 59:10-2).
The Court already considered the language from Wright cited
by Plaintiff.
In the December 30, 2011 Opinion, the Court noted
that the Third Circuit was presented with this same language and
thus had the opportunity to redefine the scope of Eleventh
Amendment immunity as to county prosecutor’s offices, yet
declined to do so.
(See Op. [Doc. No. 40] 18 n.7 (citing
Beightler v. Office of Essex Cnty. Prosecutor, 342 F. App’x 829,
832 (3d Cir. 2009).)
Absent precedent or other clear direction
from the Third Circuit or Supreme Court, this Court similarly
declined to redefine the scope of Eleventh Amendment immunity
based upon the language in Wright.
(Id.)
Moreover, because an official capacity claim “is, in all
respects other than name, to be treated as a suit against the
17
entity” and “the real party in interest is the entity[,]” the
government entity itself would be subject to a judgment on an
official capacity claim.
Kentucky v. Graham, 473 U.S. 159, 166,
105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (citation omitted)
(“Thus, while an award of damages against an official in his
personal capacity can be executed only against the official's
personal assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the
government entity itself.”).
Therefore, any claims against
Defendant Woshnak in his official capacity are in all respects
claims against the CCPO. 7
Under the Fitchik analysis, as noted above, the Third
Circuit has held that county prosecutor's offices are agents of
the state when performing classic law enforcement and
investigative functions.
See Coleman, 87 F.3d at 1505.
In this
case, Plaintiff’s Section 1983 claims against Defendant Woshnak
are based on (1) fabricating false inculpatory evidence, (2)
compelling Plaintiff to make a false plea, and (3) commencing a
criminal prosecution without probable cause.
7
(See Am. Compl. ¶¶
Although the amended complaint does not clearly assert an
official capacity claim against Defendant Woshnak, Plaintiff
alleges repeatedly that Defendant Woshnak was a “state actor”
who violated Plaintiff’s rights “under color of law.” (See,
e.g., Am. Compl. ¶¶ 60, 65, 69, 70.) The Court construes these
allegations as assertions against Defendant Woshnak in his
official capacity.
18
59-70.)
The arrest of Plaintiff, his continued incarceration,
and the decision to prosecute him are classic law enforcement
and investigative functions and not administrative functions.
Coley v. Cnty. of Essex, No. Civ. A. 2:08–4325, 2010 WL 3040039,
at *3 (D.N.J. Aug. 4, 2010), aff’d, 462 F. App’x 157 (3d Cir.
2011).
As such, the relevant government agency that would be
responsible for Defendant Woshnak would be the State, and the
first Fitchik factor is therefore satisfied.
The Court also finds that the second Fitchik factor, which
requires the Court to consider the status of the CCPO under New
Jersey law, is satisfied in this case.
County prosecutors, in
enforcing state laws and implementing policies and customs
pertaining to the enforcement of state laws, are not independent
of the State, but rather “operate as agents of the State when
they engage in law enforcement activities . . . [.]”
In re
Camden Police Cases, Nos. 11-1315, 10-4757, 2011 WL 3651318, at
*9 (D.N.J. Aug. 18, 2011).
Thus, in the context of this case,
where Plaintiff alleges that Defendant Woshnak was acting in
connection with the enforcement of state laws, the CCPO and
Defendant Woshnak were agents of the State at the time of the
alleged wrongful conduct.
The third Fitchik factor, the degree of autonomy of the
CCPO, also supports a finding of Eleventh Amendment immunity.
Pursuant to New Jersey law, “the criminal business of the State”
19
is “prosecuted by the Attorney General and the county
prosecutors.”
N.J. Stat. Ann. § 2A:158-4.
The Attorney General
is authorized to intervene and take over any investigation or
prosecution initiated by county prosecutors.
52:17B-106.
N.J. Stat. Ann. §
Thus, when performing its prosecutorial function,
such as investigating, arresting, and prosecuting Plaintiff, the
CCPO is not an autonomous entity.
The Fitchik factors, therefore, are satisfied such that
Defendant Woshnak is immune from suit for official capacity
claims under the Eleventh Amendment.
Defendant Woshnak’s motion
to dismiss is therefore granted in part.
The Court, however, will not dismiss claims asserted
against Defendant Woshnak in his individual capacity because the
Eleventh Amendment does not preclude suits against private
individuals. 8
As noted by the Third Circuit, the Supreme Court
held in Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed.
2d 301 (1991), that the Eleventh Amendment does not bar suits
brought against state officials in their individual capacities,
even if the conduct at issue was part of the defendant’s
official duties.
The Supreme Court stated: “We hold that state
8
Defendant Woshnak contends that the amended complaint does not
set forth any individual capacity claims, but the amended
complaint clearly does so. (Am. Compl. ¶ 17) (“All individual
defendants were acting in their individual and personal
capacities.”).
20
officials, sued in their individual capacities, are ‘persons’
within the meaning of § 1983.
The Eleventh Amendment does not
bar such suits, nor are state officers absolutely immune from
personal liability under § 1983 solely by virtue of the
‘official’ nature of their acts.’”
Hafer, 502 U.S. at 31, 112
S. Ct. 358); see also Kamienski v. Attorney Gen. New Jersey, No.
11–3056, 2012 WL 4034236, at *4 (D.N.J. Sept. 12, 2012) (“The
Eleventh Amendment does not preclude suit against private
individuals.”); Davis v. Twp. of Lakewood, No. Civ. A. 03-1025,
2005 WL 1863665, at *7 (D.N.J. Aug. 4, 2005)(“The Court,
however, will not dismiss claims asserted against [defendant] in
his individual capacity because the Eleventh Amendment does not
preclude suits against private individuals.”).
Any claims
against Defendant Woshnak in his individual capacity, therefore,
remain viable.
B.
Defendant Woshnak is a “Person” for Purposes of 42
U.S.C. § 1983 With Respect to Individual Capacity
Claims
Defendant Woshnak also seeks dismissal of the claims in the
amended complaint on the ground that the State and its officers
and agents are not “persons” within the meaning of 42 U.S.C. §
1983.
(Def.’s Br. 12.)
Section 1983 provides, in relevant part as follows:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
21
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . [.]
42 U.S.C. § 1983.
In Will v. Mich. Dep't of State Police, 491
U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), the
United States Supreme Court held that “[n]either a state nor its
officials acting in their official capacities are ‘persons’
under § 1983.”
Therefore, a Section 1983 claim cannot exist
against the State of New Jersey, which includes the CCPO, its
agencies, or its officials, and prosecutors, acting in their
official capacities.
See Kamienski, 2012 WL 4034236, at *5.
That said, however, Plaintiff may assert claims against
Defendant Woshnak in his individual capacity under Section 1983.
As noted above, the Supreme Court in Hafer made clear that state
officials, sued in their individual capacities, are ‘persons’
within the meaning of § 1983.
Hafer, 502 U.S. at 31, 112 S. Ct.
358; see also Estate of Lagano v. Bergen Cnty. Prosecutor's
Office, 769 F.3d 850, 855 n.5 (3d Cir. 2014) (“Of course, a
state official sued in his or her personal capacity is amenable
to suit under §§ 1983 and 1985.”).
Therefore, Defendant
Woshnak’s motion is denied insofar as he seeks dismissal of the
22
Section 1983 claims against him in his individual capacity on
the ground that he is not a “person” under Section 1983.
C.
Defendant Woshnak is a “Person” with Respect to
Individual Capacity Claims under the New Jersey Civil
Rights Act
Defendant Woshnak further moves for dismissal of the claims
asserted against him under the New Jersey Civil Rights Act, N.J.
Stat. Ann. § 10:6–1 to –2 (hereafter, “NJCRA”), because he
allegedly is not a “person” within the meaning of the statute.
Defendant contends that the state statute has been interpreted
in the same manner as 42 U.S.C. § 1983, and that dismissal is
appropriate for the same reason that dismissal is purportedly
appropriate under Section 1983.
(Def.’s Br. 13-14.)
“Like 42 U.S.C. § 1983, the NJCRA ‘premise[s] liability on
the conduct of a ‘person.’’”
Estate of Lagano, 769 F.3d at 856
(quoting Lopez–Siguenza v. Roddy, No. 13–2005, 2014 WL 1298300,
at *7 (D.N.J. Mar. 31, 2014)).
“New Jersey district courts have
interpreted the NJCRA as having incorporated the Supreme Court’s
decision in Will that, for purposes of § 1983, states and state
officials acting in their official capacity are not amenable to
suit.”
Id. (citations omitted).
For the same reasons discussed above with respect to the
Section 1983 claims, the claim against Defendant Woshnak in his
official capacity under the NJCRA is dismissed, but the claim
against him in his individual capacity is not dismissed as he is
23
a “person” under the NJCRA.
Defendant’s motion to dismiss is
granted in part and denied in part in this regard.
D.
Prosecutorial Immunity as to State Malicious
Prosecution Claim
Finally, Defendant Woshnak argues that the state law claim
for malicious prosecution should be dismissed because he, as a
member of the prosecutor’s office, is purportedly entitled to
absolute prosecutorial immunity.
(Def.’s Br. 14-17.)
With respect to this argument, the Court first notes that
Defendant Woshnak primarily relies on federal law, but he does
not seek to dismiss the Section 1983 claims on the basis of
prosecutorial immunity.
He seeks dismissal only of the
malicious prosecution claim under state law.
Second, Defendant
Woshnak argues for the first time in his reply brief that the
amended complaint fails to set forth sufficient facts to state a
claim under for malicious prosecution. 9
However, it is well-
9
The Court notes that in his moving brief, Defendant Woshnak
states in connection with the prosecutorial immunity argument as
follows:
Finally, Woshnak was the investigative
detective assigned to this matter. There is
nothing in Plaintiff’s recitation of the
facts that points to Woshnak having any role
in the prosecution of Mr. Pitman, or having
any decision-making ability to prosecute Mr.
Pitman. A detective should not be held
liable for a Prosecutor’s decision to
prosecute the matter and, thus, should not
be liable for a malicious prosecution claim.
Accordingly, Count Five of the Complaint
24
established that new arguments cannot be raised for the first
time in reply briefs.
See Elizabethtown Water Co. v. Hartford
Cas. Ins. Co., 998 F. Supp. 447, 458 (D.N.J. 1998).
Under New Jersey law, prosecutorial immunity is not
absolute like its federal counterpart.
Newsome v. City of
Newark, 13-6234, 2014 WL 4798783, at *4 (D.N.J. Sept. 25, 2014)
(citing Cashen v. Spann, 66 N.J. 541, 551, 334 A.2d 8 (N.J.
1975)).
In Cashen, the New Jersey Supreme Court stated:
Thus it is clear that New Jersey case law to
date has not equated prosecutorial immunity
with its judicial counterpart and reflects
the philosophy that there are indeed
circumstances in which a prosecutor will
must be dismissed.
(Def.’s Br. 17.) At no point does Defendant Woshnak argue
expressly that the malicious prosecution claim under state law
fails to state a claim under Rule 12(b)(6), nor does Defendant
raise any argument as to the sufficiency of the analogous
Section 1983 claim. The Court thus does not construe this
paragraph as a challenge to the sufficiency of the allegations
under Rule 12(b)(6). Moreover, even if Defendant was raising a
sufficiency challenge under Rule 12(b)(6), Defendant cites no
case law to demonstrate the elements of a claim for malicious
prosecution, assuming only that it requires “prosecution” and
concluding that Defendant could not be liable because he was not
a “prosecutor.” Defendant, as the moving party, has the burden
under Rule 12(b)(6) to demonstrate that the allegations fail to
state a claim, Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.
1980), yet he fails to do so here. Defendant arguably attempted
to clarify the issue in his reply brief, where he for the first
time specifically cites the elements of a malicious prosecution
claim and the provisions of the amended complaint that
purportedly do not support such claim. (Reply Br. in Supp. of
Mot. to Dismiss Pl.’s Compl., with Prejudice, for Failure to
State a Claim 6-8.) The Court will not at this time accept
Defendant’s belated effort to address an argument for failure to
state a claim.
25
incur civil liability for his official
conduct. We wish to make it clear that we
believe that this is the preferable approach
to future problems involving the civil
immunity of prosecutors in this State. The
public interest is best served by
recognizing that prosecutors enjoy only a
limited form of immunity.
66 N.J. at 551, 334 A.2d 8.
Thus, while prosecutors are
entitled to broad immunity under New Jersey law, their immunity
is not absolute.
The New Jersey Tort Claims Act codifies prosecutorial
immunity similar to the common law immunity set forth in Cashen.
See N.J. Stat. Ann. § 59:3–8.
This statute, which is titled
“Institution or prosecution of judicial or administrative
proceeding,” provides:
A public employee is not liable for injury
caused by his instituting or prosecuting any
judicial or administrative proceeding within
the scope of his employment.
N.J. Stat. Ann. § 59:3-8.
The Tort Claims Act limits this
prosecutorial immunity in N.J. Stat. Ann. § 59:3-14a, which
states: “Nothing in this act shall exonerate a public employee
from liability if it is established that his conduct was outside
the scope of his employment or constituted a crime, actual
fraud, actual malice or willful misconduct.”
N.J.S.A. 59:3–14a.
Qualified immunity, by contrast, is granted to
investigators under N.J. Stat. Ann. § 59:3-3, which provides: “A
public employee is not liable if he acts in good faith in the
26
execution or enforcement of any law.”
See Hayes v. Mercer
Cnty., 217 N.J. Super. 614, 622, 526 A.2d 737 (N.J. Super. Ct.
App. Div. 1987), certif. denied, 108 N.J. 643, 532 A.2d 226
(N.J. 1987).
Good faith immunity under N.J.S.A. § 59:3-3 has
“two alternative components”: objective reasonableness, 10 and
“‘subjective good faith.’”
Toto v. Ensuar, 196 N.J. 134, 146,
952 A.2d 463 (N.J. 2008) (internal quotation omitted).
“The
burden of proof is upon the employee, who must prove either of
those components in order for the good faith immunity to
attach.”
Id.
In this case, Defendant Woshnak argues that he was not
engaged in any prosecutorial functions, as he states in his
moving brief that “[t]here is nothing in Plaintiff’s recitation
of the facts that points to Woshnak having any role in the
prosecution of Mr. Pitman, or having any decision-making ability
to prosecute Mr. Pitman.”
(Def.’s Br. 17.)
His sole basis for
invoking prosecutorial immunity is that he was an employee of
the prosecutor’s office.
(Id. at 2.)
Mere employment by the
prosecutor’s office, however, is not a sufficient basis to
invoke prosecutorial immunity.
See Drisco v. City of Elizabeth,
10
The objective reasonableness inquiry turns on the “‘objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken.’” Pearson v. Callahan, 555 U.S. 223, 244, 129 S. Ct.
808, 172 L. Ed. 2d 565 (2009) (internal citation omitted).
27
No. Civ. A. 03-397, 2010 WL 1253890, at *8 n.18 (D.N.J. Mar. 23,
2010)(“New Jersey law, like federal law, determines the level of
immunity afforded prosecutors based on whether prosecutors are
operating in a quasi-judicial capacity. Under section 3–3,
immunity is qualified where a prosecutor is involved in the
conduct of an investigation.”); cf. Hayes, 217 N.J. Super. at
622, 526 A.2d 737 (investigator is entitled to a specific
qualified immunity).
Rather, to the extent Defendant Woshnak
was conducting only investigatory duties, he would be entitled
to qualified immunity rather than the near-absolute immunity
afforded to prosecutors.
Because the parties have not addressed the immunity issue
within the appropriate legal framework, the Court at this time
denies without prejudice Defendant Woshnak’s motion to dismiss
the malicious prosecution claim under state law.
Defendant
Woshnak may file a renewed motion, including a motion for
summary judgment on this issue setting forth the reasons, if
any, that he believes he is entitled to immunity in connection
with this state law claim.
E.
Plaintiff’s Request for Leave to Amend
Plaintiff requests leave of Court to amend the complaint if
the Court determines that the factual allegations in the amended
complaint are deemed insufficient.
(Pl.’s Opp. Br. 25.)
Court’s decision is not based on the sufficiency of the
28
The
allegations set forth in the amended complaint under the
Twombly/Iqbal standard.
Therefore, Plaintiff’s request for an
opportunity to file an amended pleading is denied.
V.
CONCLUSION
For the reasons set forth above, Defendant’s motion will be
granted in part and denied in part.
Although the Court
previously issued an Order with respect to the motion, the Court
will vacate that Order and issue a new Order at this time.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: January 14, 2015
At Camden, New Jersey
29
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