COPE v. KOHLER et al

Filing 44

OPINION. Signed by Chief Judge Jerome B. Simandle on 6/29/2015. (dmr)(n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DEMETRIUS C. COPE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 12-5188 (JBS-KMW)

v.
DAVE KOHLER, et al.,

OPINION
Defendants.

APPEARANCES:
DEMETRIUS C. COPE, Plaintiff Pro Se
29 Medallion Lane
Willingboro, New Jersey 08046
LUANH LLOYD D’MELLO, DEPUTY ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
STATE OF NEW JERSEY, DIVISION OF LAW
25 West Market Street
PO Box 112
Trenton, New Jersey 08625-0112
Attorney for Defendant Dave Kohler
SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Defendant Dave
Kohler’s (“Defendant”) Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6). (Docket Entry 35). Pro se
Plaintiff Demetrius C. Cope (“Plaintiff”) filed an opposition to
Defendant’s motion. (Docket Entry 41). This motion is being
considered on the papers pursuant to Fed. R. Civ. P. 78(b). For

the reasons set forth below, Defendant’s motion shall be denied
without prejudice.
BACKGROUND
A. Procedural History
On August 17, 2012, Plaintiff filed this civil rights
complaint pursuant to 42 U.S.C. § 1983 alleging Defendant and
others engaged in malicious prosecution. (Docket Entry 1). By
Order dated March 4, 2013, this Court granted Plaintiff’s motion
to proceed in forma pauperis and administratively terminated the
complaint for failure to state a claim. (Docket Entries 3 & 4).
Plaintiff filed an amended complaint on May 17, 2013. (Docket
Entry 11). After engaging in sua sponte screening pursuant to 28
U.S.C. § 1915, the Court permitted the amended complaint to
proceed against Defendant on the malicious prosecution claim
only. (Docket Entry 14). With leave of Court, Defendant filed
the instant Motion to Dismiss. (Docket Entry 35). Plaintiff
filed opposition to the motion. (Docket Entry 41).
B. Factual Background
1.

Allegations in the Pleadings

In March 2007, Defendant Dave Kohler and Officer John Fine,
both detectives with the Burlington County Prosecutor’s Office
(“BCPO”), 1 met with a first-time confidential informant (“CI

1

Officer Fine is also a defendant in the instant action, however
he is not a part of the present motion to dismiss.
2

1551”). He 2 informed the officers that he had information
regarding a “large scale cocaine distribution operated by
[Plaintiff].” (Amended Compl. at 19).
CI 1551 indicated that Plaintiff had been selling cocaine
for over ten years, and he had been buying cocaine from
Plaintiff’s house for six months. (Id. at 19). He alleged
Plaintiff obtained “kilogram quantities” of powder cocaine from
a source in New York City and then re-packaged the cocaine for
distribution throughout Burlington County by Mark McNeil. (Id.
at 19-20). He also stated Plaintiff used pre-paid wireless
telephones to communicate with others, which he changed
frequently to avoid detection by police. (Id. at 19). CI 1551
indicated the frequent changing of Plaintiff’s number was why he
did not have a current contact number for Plaintiff. (Id. at 6).
Following their conversation with CI 1551, Defendant and
Officer Fine, with cooperation from the Drug Enforcement
Administration (“DEA”), began an investigation, dubbed
“Operation Whirlwind,” into the distribution scheme. (Id. at 6).
The BCPO obtained wiretaps for McNeil’s phone, however “there
was no probable cause to obtain any [wiretaps] for [Plaintiff].”
(Id. at 7). Accepting Plaintiff’s allegations as true, the
wiretaps did not contain any narcotic-related conversations, but

2

CI 1551’s gender is unknown. For ease of reference the Court
will refer to CI 1551 using male pronouns.
3

Defendant deliberately interpreted the conversations as
referring to the distribution of cocaine. (Id. at 7).
Furthermore, the recorded conversations indicated someone named
“Ali” from Newark, New Jersey was McNeil’s source of cocaine,
not Plaintiff. (Id. at 7).
As Operation Whirlwind proceeded, information came to light
that contradicted CI 1551’s account of the conspiracy. A second
confidential informant (“CI 2”), who had previously given
reliable information to law enforcement, informed the BCPO that
McNeil operated the distribution ring, not Plaintiff. (Id. at
7). CI 2 made no mention of Plaintiff’s involvement with McNeil
or the distribution of cocaine. (Id. at 7). Furthermore, a
conversation between McNeil and Plaintiff that was intercepted
on approximately August 16, 2007 purportedly indicated that
Plaintiff traveled to Texas for cocaine, not New York as CI 1551
claimed. (Id. at 8).
In spite of being in possession of information
contradicting CI 1551’s version of events, Defendant continued
to assert in various affidavits in support of warrant
applications that Plaintiff was the distributor. (Id. at 7).
Prior to applying for a search warrant for Plaintiff’s home,
officers conducted surveillance of Plaintiff upon his return
from Texas. (Id. at 10). In their warrant affidavit, the

4

officers allegedly intentionally distorted what occurred during
surveillance.
On August 24, 2007, Plaintiff was arrested, and his
residence was searched by members of the BCPO, including
Defendant. (Id. at 8-9). Although several items were seized
during the search, no cocaine or other evidence linking
Plaintiff to cocaine trafficking was found. (Id. at 8-9). Again
accepting Plaintiff’s version of events, Defendant and other law
enforcement agents threatened and coerced McNeil into making a
statement that implicated Plaintiff in the cocaine distribution.
(Id. at 8). McNeil informed the officers that his August 16,
2007 conversation with Plaintiff was not about trafficking in
narcotics, but Defendant Kohler presented a distorted version of
McNeil’s statement during his testimony before a Burlington
County grand jury. (Id. at 8). Plaintiff was indicted on
September 18, 2008 for conspiracy to distribute/possess with
intent to distribute a controlled dangerous substance, N.J. STAT.
ANN. §§ 2C:5-2, 35-5(a)(1), 35-5(b)(2). (Id. at 32).
In July 2010, Plaintiff contacted the Department of
Justice’s Office of Professional Responsibility (“OPR”) and
asserted that he had been harassed, threatened, and coerced by
law enforcement and that the case against him had been
manufactured. (Id. at 10, 41). Shortly thereafter, Plaintiff’s
wife received a letter from their home insurance company. The
5

letter stated the insurance company had been informed that
Plaintiff had previously been convicted of distributing drugs on
school property, and as a result they would not renew the home
or automobile policies that were in Plaintiff’s wife’s name.
(Id. at 10, 39). Plaintiff states that Defendant informed the
insurance company of the charges out of malice and in
retaliation for contacting the OPR. (Id. at 10).
In approximately October 2011, McNeil recanted his
statement to police implicating Plaintiff in the conspiracy.
(Id. at 32). He also provided Plaintiff with exculpatory
statements. (Id. at 32). The Burlington County Prosecutor filed
for a nolle proseui order as “the State’s proofs have been
significantly compromised.” (Id. at 32). The New Jersey Superior
Court Law Division formally dismissed the indictment on October
14, 2011. (Id. at 32).
Plaintiff asserts Defendant engaged in malicious
prosecution by distorting the facts of the case in his
affidavits in support of wire-tap and search warrants and in his
testimony before the grand jury, and by coercing McNeil to
implicate Plaintiff in the conspiracy regardless of the
evidence, resulting in an indictment for which Plaintiff was
eventually exonerated.

6

2.

Defendant’s Statement of Facts

Defendant asserts that as a member of the BCPO, he is
entitled to sovereign immunity. He also argues that he is
entitled to qualified immunity as his sworn statements in
support of warrant applications were based on probable cause
derived from his lengthy investigation. He finally argues that
his grand jury testimony is entitled to absolute immunity.
STANDARD OF REVIEW
A. Dismissal Under Rule 12(b)(1)
Defendant argues that Plaintiff's § 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). See
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d
Cir. 2014). As Defendant’s assertion that Plaintiff's claims are
barred by sovereign immunity is a facial attack on jurisdiction
as opposed to a factual attack, see id. at 357-59, the Court
accepts the allegations in the complaint as true and utilizes
the standard for dismissal under Rule 12(b)(6). Id. at 358.
B. Dismissal Under Rule 12(b)(6)
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted under
Rule 12(b)(6), a court must accept all well-pleaded allegations
7

in the complaint as true and view them in the light most
favorable to the non-moving party. A motion to dismiss may be
granted only if a court concludes that the plaintiff has failed
to set forth fair notice of what the claim is and the grounds
upon which it rests that make such a claim plausible on its
face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
Although the court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11
(3d Cir. 2009). A plaintiff should plead sufficient facts to
“raise a reasonable expectation that discovery will reveal
evidence of the necessary element,” Twombly, 550 U.S. at 556,
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Iqbal, 556 U.S. at 678.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). However
8

“pro se litigants still must allege sufficient facts in their
complaints to support a claim.”

Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
IV.

DISCUSSION

A. Eleventh Amendment Immunity
Defendant asserts that as a member of the BCPO, he is entitled
to sovereign immunity. The Eleventh Amendment to the United States
Constitution provides: “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.” U.S. Const. amend. XI.
“Sovereign

immunity

extends

to

state

agencies

and

state

officers, ‘as long as the state is the real party in interest.’ It
does not extend to counties and municipalities.” Estate of Lagano
v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 857 (3d Cir.
2014) (quoting Fitchik v. N.J. Transit Rail Operations, 873 F.2d
655, 659 (3d Cir. 1989)). To determine whether the state is the
real party in interest, this Court considers three factors: (1)
whether the money to pay for the judgment would come from the
state; (2) the status of the agency under state law; and (3) what
degree of autonomy the agency has. Fitchik, 873 F.2d at 659; see
also Estate of Lagano, 769 F.3d at 857-58 (holding Fitchik is the
“proper

framework

for

analyzing
9

Eleventh

Amendment

sovereign

immunity as it applies to county prosecutors . . . “). Utilizing
the Fitchik factors and acknowledging prior case law holding that
“‘[w]hen [New Jersey] county prosecutors engage in classic law
enforcement and investigative functions, they act as officers of
the State,” the Third Circuit has applied Eleventh Amendment
immunity to county prosecutor offices when their actions “are
clearly law enforcement functions.” Woodyard v. Cnty. of Essex,
514 F. App'x 177, 182 (3d Cir. 2013) (citing Fitchik, 873 F.2d at
659; Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d
193, 198 (3d Cir. 2008); and Coleman v. Kaye, 87 F.3d 1491, 1505
(3d Cir. 1996)).
In this case, Plaintiff's complaints about the Defendant
concern the investigation and prosecution of his criminal case,
the ultimate law enforcement function of the Prosecutor's Office.
However, the

allegations

that

Defendant

contacted

Plaintiff’s

wife’s insurance company in retaliation supports a reasonable
inference that Defendant did not act exclusively within his classic
investigatory and prosecutorial functions. See Estate of Lagano,
769 F.3d at 857-58. Moreover, Defendant failed to address the
Fitchik factors in his motion papers. As the Court cannot make the
required findings, the motion must be denied.
Even if Defendant is immune in his official capacity, the
Court must still determine whether it may proceed against Defendant
in his individual capacity. See Hafer v. Melo, 502 U.S. 21, 31
10

(1991) (“We hold that state 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.”); Slinger v. New
Jersey, 366 F. App'x 357, 360-61 (3d Cir. 2010).
B. Immunity for Grand Jury Testimony
Defendant also argues he is entitled to absolute immunity for
his testimony before the grand jury. He is correct.
The

Supreme

Court

has

unanimously

held

that

grand

jury

witnesses, like trial witnesses, have “absolute immunity from any
§ 1983 claim based on the witness' testimony.” Rehberg v. Paulk,
132 S. Ct. 1497, 1506 (2012); see also Peteete v. Asbury Park
Police Dep’t, 477 F. App’x 887, 889-90 (3d Cir. 2012). The Court
noted that “[d]espite the broad terms of § 1983, this Court has
long recognized that the statute was not meant to effect a radical
departure from ordinary tort law and the common-law immunities
applicable in tort suits.” Rehberg, 132 S. Ct. at 1502. “Immunities
‘well grounded in history and reason,’ . . . were not somehow
eliminated ‘by covert inclusion in the general language’ of §
1983.” Ibid. (quoting Tenney v. Brandhove, 341 U.S. 367, 376
(1951)). Defendant is therefore entitled to absolute immunity for
his testimony before the grand jury, therefore it may not be used
against him at trial. As Plaintiff alleges more misconduct than
11

just the grand jury testimony, however, the complaint cannot be
dismissed on this basis.
C. Qualified Immunity
Defendant finally asserts he is entitled to qualified
immunity. Qualified immunity is an affirmative defense, not a
jurisdictional attack, available to government officials that
shields them from litigation arising from actions taken in the
course of their duties in certain cases. Doe v. Groody, 361 F.3d
232, 237 (3d Cir. 2004). In order for a defendant to be immune
from liability, the Court must find that the defendant's conduct
has not violated any clearly established statutory or
constitutional right. Wilson v. Layne, 526 U.S. 603, 614 (1999).
If, however, the Court finds that a reasonable official would
have known that the alleged conduct was in violation of a
clearly established federal right, then immunity is forfeited.
In support of his qualified immunity argument, Defendant
has submitted several exhibits consisting of his affidavits in
support of electronic communication interception, search
warrants, and arrest warrants for Operation Whirlwind. As a
general rule, a party's reliance upon factual materials
extraneous to the pleadings requires the Court to treat a motion
to dismiss as one for summary judgment under Rule 56.

See Crown

Cent. Petroleum Corp. v. Waldman, 634 F.2d 127, 129 (3d Cir.
1980).

The Court may, however, consider a “document integral to
12

or explicitly relied upon in the complaint,” or an “undisputedly
authentic document” without converting the motion. In re
Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d
Cir. 1999) (quoting In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993)).
Although Plaintiff does mention Defendant’s affidavits
throughout his complaint, he asserts they are not accurate
representations of the events described therein and were
deliberately fabricated to secure the desired results, namely
Plaintiff’s arrest and subsequent indictment. As such, the
papers submitted by Defendant are not undisputedly authentic
documents that may be considered by the Court without converting
the motion to dismiss into a summary judgment motion. In re
Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d at 287. The
Court therefore declines to consider the papers submitted by
Defendant in connection with the motion to dismiss.
Although a finding of qualified immunity should be made at
the earliest possible point, the Court finds that in this case,
such a determination cannot fairly be made at this point in
time. Plaintiff has not had the opportunity to conduct
discovery, (see Docket Entry 43, Order Staying Discovery), and
said discovery may yield evidence relevant to the qualified
13

immunity determination. For example, a deposition of McNeil may
shed light on the reasons he recanted his statement
incriminating Plaintiff, which would inform the Court as to
whether Defendant’s actions clearly violated Plaintiff’s
constitutional rights. The Court therefore declines to
adjudicate Defendant’s qualified immunity argument at this point
of time, without prejudice to his ability to raise the defense
at a future point in time.
V. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss
is denied in part and granted in part. An accompanying Order
will be entered.

June 29, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

14