LOPEZ-SIGUENZA v. RODDY, ESQUIRE et al

Filing 65

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 3/31/14. (js)

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

CARLOS E. LOPEZ-SIGUENZA a/k/a
CARLOS E. LOPEZ-SIQUENZA,
Civil No. 13-2005 (JBS/JS)
Plaintiff,
v.
OPINION
MARK E. RODDY, ESQUIRE, et al.,
Defendants.

APPEARANCES:
Benjamin Folkman, Esq.
Folkman Law Offices, P.C.
1949 Berlin Road, Suite 100
Cherry Hill, NJ 08003
-andJames A. Barry, Esq.
Michael A. Galpern, Esq.
Locks Law Firm LLC
457 Haddonfield Road, Suite 500
Cherry Hill, NJ 08003
Attorneys for Plaintiff Carlos E. Lopez-Siguenza
Tracy Riley, Esq.
Law Offices of Riley & Riley
100 High Street, Suite 302
Mt. Holly, NJ 08060
Attorney for Defendants Mark E. Roddy, Esquire, Detective
John Imfeld and Detective James Hipple
Brian P. Wilson, Deputy Attorney General
State of New Jersey
Office of the Attorney General
Division of Law
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Attorney for Defendants Atlantic County Prosecutor’s Office
and Janet Gravitz

SIMANDLE, Chief Judge:
I.

Introduction
Plaintiff Carlos Lopez-Siguenza claims he was falsely

arrested and maliciously prosecuted for the crime of Sexual
Assault of a Minor based upon false evidence of the alleged
victim’s age. After he pleaded guilty, was imprisoned and
thereafter deported, the falsity of the victim’s birth
certificate came to light and his conviction was set aside.
This matter comes before the Court upon a motion to dismiss
by Defendants Atlantic County Prosecutor’s Office (“ACPO”) and
Assistant Prosecutor Janet Gravitz (“Gravitz”) [Docket Item 14]
and Plaintiff’s cross-motion to amend [Docket Item 30.]
The principal questions presented are whether Defendants
ACPO and Gravitz (collectively “County Defendants”) are entitled
to immunity and whether Plaintiff’s Complaint and proposed
Amended Complaint state a cognizable claim under 42 U.S.C. §
1983 and the New Jersey Civil Rights Act (“NJCRA”) based on
violation of the Fourth Amendment of the United States
Constitution. Further, the Court must determine whether
amendment naming Gravitz in her individual capacity would be
futile.
Because County Defendants address Plaintiff’s cross-motion
to amend in their reply brief, and in the interest of
efficiency, the Court will consider the merits of both motions.
2

For the reasons discussed below, the Court will grant County
Defendants’ motion to dismiss and deny Plaintiff’s cross-motion
to amend.
II.

Background
Plaintiff, Carlos E. Lopez-Siguenza, brought this action

after his conviction for Sexual Assault of a Minor was vacated,
but not before serving a three year prison term and being
deported to El Salvador.
The facts set forth here are those alleged in Plaintiff’s
Complaint which the Court must accept as true for purposes of
the instant motions. Plaintiff is a native of El Salvador, who
at all relevant times was residing in Northfield, New Jersey as
a Legal Permanent Resident. (Compl. [Docket Item 1] ¶¶ 1-2.) On
January 24, 2003, Melissa Aguilar Cruz (“Cruz”) reported to the
police and/or her social worker that she was a minor who had
sexual intercourse with Plaintiff at various times in 2002. (Id.
¶ 10.) Cruz and/or her guardians gave the police a handwritten
Honduran birth certificate for an individual named “Melissa
Gabriela Aguilar Guerrero,” which contained a Spanish language
inscription for the date of birth, translated to English as
March 3, 1987. (Id. ¶ 11.) The birth certificate contained a
National Identification Number of “1501870076600.” (Id.) The
police relied on this birth certificate and assumed that Cruz
was 14 years old and Plaintiff was 21 years old at the time they
3

engaged in sexual intercourse. (Id. ¶ 12.) On March 12, 2003,
Plaintiff was arrested by Detectives John Imfeld (“Imfeld”) and
James Hipple (“Hipple”) and charged with two counts of
Aggravated Sexual Assault, two counts of Child Abuse, and two
counts of Endangering Child Welfare. (Id. ¶ 13.)
On July 8, 2003, Mark E. Roddy, Esquire (“Roddy”), acting
as Plaintiff’s defense attorney, requested from the prosecutors
a “certified and/or notarized copy of the alleged victim’s birth
certificate,” but no such document was provided. (Id. ¶ 14.)
Plaintiff was indicted on one count of second degree Sexual
Assault, one count of third degree Endangering the Welfare of a
Child, and one count of fourth degree Child Abuse. (Id. ¶ 15.)
On March 12, 2004, after being advised by Roddy that he had no
chance of prevailing at trial, Plaintiff pleaded guilty to one
count of second degree Sexual Assault of a Minor and was
sentenced to three years in New Jersey State Prison. (Id. ¶ 16.)
Plaintiff served his prison term, was detained by Immigration
and Customs Enforcement, placed in removal proceedings, and
deported to El Salvador. (Id. ¶¶ 17-18.)
After Plaintiff’s deportation, his mother hired an
attorney, Jorge Coombs, Esquire (“Coombs”), to investigate
Plaintiff’s immigration case. (Id. ¶ 19.) Coombs noticed a
discrepancy between the name Cruz gave police and the name on
the birth certificate. (Id. ¶ 20.) Cruz gave her name to police
4

as “Melissa Aguilar Cruz” rather than “Melissa Aguilar
Guerrero.” On July 28, 2011, Coombs sent a letter to Francisco
Quezada (“Quezada”), Consul General of Honduras, in which he
requested verification of the birth certificate of “Melissa
Gabriela Aguilar Guerrero” with the National Identification
Number “1501870076600.” (Id. ¶ 21.) Coombs also sent an e-mail
to the Honduran Consulate’s staff attorney, Jose H. Palacios
Guifaro, Esquire (“Guifaro”), requesting guidance on how to
decipher the Honduran National Identification Number. (Id. ¶
21.)
On August 2, 2011, Coombs received a letter from Quezada
stating that his office could not verify the accuracy of the
birth certificate, nor could his office find the name “Melissa
Gabriela Aguilar Guerrero” or the National Identification Number
“1501870076600.” (Id.) On August 2, 2011, Coombs also received a
response from Guifaro stating that he found a birth certificate
for “Melissa Gabriela Andino Munoz” born on March 3, 1984 with a
Honduran National Identification Number of “1501-1984-00766.”
(Id. ¶ 23.) Coombs learned from the e-mail that digits five
through eight in the identification number correspond to the
person’s year of birth. (Id.) Coombs then verified that “Melissa
Gabriela Andino Munoz” is currently registered as living in
southern New Jersey. (Id. ¶ 25.) On July 28, 2011, Coombs spoke

5

with Jose Rivera Sinclair, an ex-boyfriend of Cruz, who stated
that Cruz’s age was well known in the community. (Id. ¶ 28.)
Plaintiff subsequently filed for Post-Conviction Relief,
which was granted on August 2, 2012. (Id. ¶¶ 29-30.) Prosecutors
did not oppose the motion, taking the position that there was
probable cause for each count of the indictment, but prosecuting
the case would cause wear and tear on the mental and emotional
state of Cruz and her family. (Id. ¶ 29.) On August 17, 2012,
prosecutors moved for an order to dismiss the indictment against
Plaintiff. (Id. ¶ 31.)
Plaintiff filed this civil action on March 28, 2013.
Plaintiff’s Complaint alleges violations of 42 U.S.C. § 1983 and
the NJCRA by Defendants Atlantic City Police Department, Imfeld,
Hipple, the ACPO, and Gravitz. 1 [Docket Item 1.] On June 27,
2013, County Defendants filed the instant motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). First,
County Defendants argue that the ACPO and Gravitz in her
official capacity, are entitled to sovereign immunity and are
not persons amenable to suit under section 1983 or the NJRCA.
Second, County Defendants argue that Plaintiff fails to
establish a Fourth Amendment violation. Third, County Defendants

1

Plaintiff’s Complaint also contains claims against Roddy for
legal malpractice, breach of fiduciary duty, and breach of
contract.
6

contend that the doctrines of absolute and qualified immunity
shield the ACPO and Gravitz from liability.
On September 13, 2013, Plaintiff filed his brief in
opposition and cross-motion to amend, naming Gravitz in her
individual capacity. [Docket Item 30.] Plaintiff’s proposed
Amended Complaint contains additional factual allegations that
(1) Gravitz undertook investigatory acts, directed the acts of
others in obtaining the handwritten birth certificate, and
failed to properly authenticate the birth certificate before
seeking an indictment; and (2) Gravitz failed to provide
Plaintiff with a certified and/or notarized copy of Cruz’s birth
certificate. (Am. Compl. ¶¶ 12, 39-40, 50.)
The Court will first address County Defendants’ arguments
applicable to the ACPO and Gravitz in her official capacity
before considering arguments applicable to claims in the
proposed Amended Complaint against Gravitz in her individual
capacity.
III.

Discussion
A.

Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff failed to set forth fair notice of what the claim
7

is and the grounds upon which it rests. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
If a responsive pleading has been served, “a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a). “The court
should freely give leave when justice so requires.” Id. The
decision to grant leave to amend a complaint rests within the
sound discretion of the trial court. Massarsky v. General Motors
Corp., 706 F.2d 111, 125 (3d Cir. 1983). The district court may
deny leave to amend only if (a) the moving party’s delay in
seeking amendment is undue, motivated by bad faith, or
prejudicial to the non-moving party; or (b) the amendment would
be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir.
1984). “Futility” means that the complaint, as amended, would
fail to state a claim upon which relief could be granted. Shane
v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted).

8

In assessing “futility,” the court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6). Id.
B.

Plaintiff’s Claims Under Section 1983 and the NJCRA
Based on Violations of the Fourth Amendment

County Defendants argue that the allegations in Plaintiff’s
proposed Amended Complaint are identical to those in Plaintiff’s
Complaint and do not rise to the level of a Fourth Amendment
violation necessary to establish claims under section 1983 and
the NJCRA. County Defendants construe Plaintiff’s allegations as
a claim for malicious prosecution.
Plaintiff argues that his claims are based on false
imprisonment where police lack probable cause to make an arrest.
Specifically, Plaintiff emphasizes Gravitz’s participation in
the investigation of the facts underlying the charges against
Plaintiff “before seeking an indictment.” (Compl. ¶¶ 39, 50; Am.
Compl. ¶¶ 39, 50.)
To state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege: (1) the violation of a right secured by
the Constitution or laws of the United States and (2) that the
alleged deprivation was committed or caused by a person acting
under color of state law. 2 West v. Atkins, 487 U.S. 42, 48
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

2

Section 1983 provides in relevant part:
9

Similarly, the NJCRA creates a private right of action for
deprivations of “any substantive due process or equal protection
rights, privileges or immunities secured by the Constitution or
laws of the United States, or any substantive rights, privileges
or immunities secured by the Constitution or laws of [New
Jersey].” N.J. Stat. Ann. § 10:6–2.
To state a claim for false arrest under the Fourth
Amendment, plaintiff must establish: (1) that there was an
arrest and (2) that the arrest was made without probable cause.
James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
“[W]here the police lack probable cause to make an arrest, the
arrestee has a claim under § 1983 for false imprisonment based
on a detention pursuant to that arrest.” O’Connor v. City of
Philadelphia, 233 F. App’x 161, 164 (3d Cir. 2007) (citing
Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir.
1995)). “Probable cause to arrest exists when the facts and the
circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . .
. 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.
10

believe that an offense has been or is being committed by the
person to be arrested.” Merkle v. Upper Dublin Sch. Dist., 211
F.3d 782, 788 (3d Cir. 2000) (citation omitted).
To state a claim for malicious prosecution under section
1983, a plaintiff must show that: “(1) the defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in the
plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with
the concept of seizure as a consequence of a legal proceeding.” 3
McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir.
2009). The element of malice may be inferred from a lack of
probable cause. Robinson v. Jordan, 804 F. Supp. 2d 203, 206
(D.N.J. 2011).
The Court finds that both Plaintiff’s Complaint and
proposed Amended Complaint allege a violation of the Fourth
Amendment based on false arrest or false imprisonment because
the factual allegations focus on the conduct of the police and

3

New Jersey law requires the first four elements, but not the
fifth. See Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d
243, 248 (3d Cir. 2001) (“Under New Jersey law, malicious
prosecution has four elements. Plaintiff must establish that the
defendant (1) instituted proceedings (2) without probable cause
and (3) with legal malice; and (4) the proceedings terminated in
favor of the plaintiff.”).
11

Gravitz before Plaintiff received legal process. See Heck v.
Humphrey, 512 U.S. 477, 484 (1994). The Complaint states that
Plaintiff was arrested on March 12, 2003 and the police lacked
probable cause to believe that Plaintiff had committed an
offense. (Compl. ¶¶ 13, 33; see also Am. Compl. ¶¶ 14, 33.)
Further, the Complaint states that, before Plaintiff’s arrest
and indictment, Gravitz and the police relied on a handwritten
birth certificate containing a name different from that given by
the complainant and ultimately proven to be invalid. Drawing
inferences favorable to Plaintiff, the Court rejects County
Defendant’s contention that there are no factual allegations
that Gravitz participated in a probable cause determination. 4 The
Court is satisfied that Plaintiff’s Amended Complaint, broadly
construed, states claims under section 1983 and the NJCRA based
on false arrest in violation of the Fourth Amendment. Therefore,
County Defendants’ motion to dismiss on these grounds is denied.
Further, the Court finds that both Plaintiff’s Complaint
and proposed Amended Complaint allege a violation of the Fourth
Amendment based on malicious prosecution. County Defendants only
argue that Plaintiff has failed to satisfy the elements of

4

The Court has not considered State Defendants’ argument based
on materials extraneous to the pleadings. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (“As a
general matter, a district court ruling on a motion to dismiss
may not consider matters extraneous to the pleadings.”); see
also Def. Reply [Docket Item 33] at 5.
12

probable cause and malice. As noted above, the Complaint states
that Plaintiff was arrested without probable cause after Gravitz
and the police relied on a handwritten birth certificate, later
determined to be invalid. The Court recognizes that prosecutors
are not required to “explore every potentially exculpatory lead
before filing a criminal complaint.” Trabal v. Wells Fargo
Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001). However,
County Defendants’ argument on these grounds is beyond the scope
of a motion to dismiss. Factual allegations that the police and
Gravitz lacked probable cause and relied on an invalid birth
certificate are sufficient at this stage to infer malice and
state a claim for malicious prosecution. Therefore, County
Defendants’ motion to dismiss on these grounds is denied.
C.

Sovereign Immunity

County Defendants argue that Plaintiff’s claims against the
ACPO and Gravitz in her official capacity should be dismissed
because sovereign immunity applies.
Under the Eleventh Amendment, the Supreme Court “has
consistently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as
by citizens of another State.” Edelman v. Jordan, 415 U.S. 651,
662-63 (1974). “[N]either a State nor its officials acting in
their official capacities” may be sued for monetary relief under
section 1983. Hyatt v. Cnty. of Passaic, 340 F. App’x 833, 836
13

(3d Cir. 2009) (quoting Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989)). Noting that the NJCRA is “substantially
modeled after” section 1983, courts in the District of New
Jersey have held that Eleventh Amendment sovereign immunity
applies to claims under the NJCRA. Slinger v. New Jersey, Civ.
07-5561 (DMC), 2008 WL 4126181, at *5 (D.N.J. Sept. 4, 2008),
rev’d in part, 366 F. App’x 357 (3d Cir. 2010) (dismissing all
claims against State under the NJCRA because “[t]raditional
common law principles, contemporary principles of statutory
construction and common sense all demonstrate that the NJCRA
does not pierce the State’s sovereign immunity.”); Estate of
Lydia Joy Perry ex rel. Kale v. Sloan, Civ. 10-4646 (AET), 2011
WL 2148813, at *2 (D.N.J. May 31, 2011); Green v. Corzine, Civ.
09-1600, 2011 WL 735719, at *7 (D.N.J. Feb. 22, 2011).
State sovereign immunity extends to entities and persons
who can show that, even though the State is not the named
defendant, “the [S]tate is the real party in interest.” Fitchik
v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659
(3d Cir. 1989) (citing Edelman, 415 U.S. at 663)). The Third
Circuit has instructed courts to consider three factors: (1)
whether payment of a judgment would come from the State’s
treasury; (2) the status of the entity under state law, and (3)
the entity's degree of autonomy from state regulation. Id. at
659.
14

In addressing the first Fitchik factor, “a court must first
determine in which capacity the prosecutor’s office was acting
when the actions that gave rise to the plaintiff’s claims took
place.” Landi v. Borough of Seaside Park, Civ. 07-5319 (FLW),
2009 WL 606141, at *4 (D.N.J. Mar. 9, 2009). In Coleman v. Kaye,
87 F.3d 1491 (3d Cir. 1996), the Third Circuit distinguished
between classic law enforcement and investigative functions,
where prosecutors act as officers of the State, and
administrative functions unrelated to criminal prosecution,
where prosecutors act as employees of the county. Coleman v.
Kaye, 87 F.3d at 1505-06; see also Wright v. State, 778 A.2d
442, 462 (N.J. 2001) (relying on Coleman and holding that State
may be held vicariously liable for the tortious actions of
county prosecutors performed during investigation, arrest, and
prosecution for violations of state criminal law).
The Court finds that the allegations in Plaintiff’s
Complaint and proposed Amended Complaint relate to classic law
enforcement and investigative functions. Plaintiff’s Complaint
states that the ACPO and Gravitz, “failed to properly
authenticate the alleged handwritten birth certificate before
seeking an indictment” and “failed to properly provide the
Plaintiff with a certified and/or notarized copy of Cruz’s birth
certificate.” (Compl. ¶ 39-40, 50-51; Am. Compl. 39-40, 50).
There is no question that the alleged misconduct involves the
15

ACPO and Gravitz’s legal knowledge and the exercise of
discretion in light of that knowledge. In re Camden Police
Cases, Civ. 11-1315 (RBK/JS), 2011 WL 3651318, at *7 (D.N.J.
Aug. 18, 2011). Moreover, the allegations in the instant case
present an even clearer example of prosecutorial functions than
those addressing training and supervision where courts have
found sovereign immunity applicable. See Hyatt v. Cnty. of
Passaic, 340 F. App’x 833, 837 (3d Cir. 2009) (finding that
procedures, policy, and training regarding sexually abused child
witnesses required legal knowledge and discretion and therefore
was related to their prosecutorial function); In re Camden
Police Cases, 2011 WL 3651318, at *7 (finding that providing
legal training and supervision of police officers is a
prosecutorial rather than administrative function). Further,
courts have consistently found that pre-charge investigation and
charging decisions are traditional prosecutorial functions.
Beightler v. Office of Essex Cnty. Prosecutor, 342 F. App’x 829,
832 (3d Cir. 2009) (holding that county prosecutor’s office was
“undeniably engaged in a classic law enforcement function when
it charged [plaintiff] with unlawful possession of a firearm”);
Palmerini v. Burgos, Civ. 10-210 (FLW), 2011 WL 3625104, at *9
(D.N.J. Aug. 15, 2011) (finding that allegations regarding
decisions to charge plaintiff with various crimes, to consult
with witnesses, and to converse with police officers, all
16

involve the performance of traditional law enforcement and
investigative functions). In light of the above, and because
Plaintiff has presented no argument that County Defendants’
conduct falls outside traditional prosecutorial functions, the
Court finds that Plaintiff’s allegations relate to traditional
prosecutorial functions and payment for judgment would come from
the State’s treasury.
Turning to the remaining Fitchik factors, the Court adopts
the reasoning of its sister courts and concludes that the ACPO
is a non-autonomous, state entity when performing its
prosecutorial functions. Landi, 2009 WL 606141, at *5 (“It is
clear that under New Jersey law, [a county prosecutor’s office]
is a state entity when performing its prosecutorial functions,”
and a prosecutor’s office is not an autonomous entity when
acting in its prosecutorial capacity because “New Jersey law
mandates that the Attorney General maintain a supervisory role
over county prosecutors exercising and enforcing law enforcement
policy”). Therefore, the ACPO and Gravitz in her official
capacity are entitled to sovereign immunity under the Eleventh
Amendment. 5 The Court will grant State Defendants’ motion to

5

The same analysis applies to Gravitz in her official capacity
because the Supreme Court has made clear that official capacity
suits are simply an alternative to “pleading an action against
an entity of which an officer is an agent.” Kentucky v. Graham,
473 U.S. 159, 166 (1985) (quoting Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690, n.55 1978)).
17

dismiss claims against the ACPO and Gravitz in her official
capacity. 6
D.

Persons Amenable to Suit Under Section 1983 and NJCRA

Alternatively, County Defendants argue that Plaintiff’s
claims must be dismissed because they are not persons amenable
to suit under section 1983 or the NJCRA. The Court agrees to the
extent Plaintiff asserts claims against the ACPO and Gravitz in
her official capacity.
To be liable under 42 U.S.C. § 1983, a defendant must be a
“person.” 42 U.S.C. § 1983. The Supreme Court has held that
“neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71, (1989). Accordingly, a cause
of action under section 1983, “cannot be asserted against the
State, its agencies, or its officials acting in their official
capacities.” Landi, 2009 WL 606141, at *6.
Here, both the ACPO and Gravitz are State agencies or
officials. Therefore, Plaintiff’s claims pursuant to section
1983 will be dismissed because State Defendants are not persons
amenable to suit under the statute.

6

Sovereign immunity would not bar suit against Gravitz in her
individual capacity. Slinger v. New Jersey, 366 F. App’x 357,
360 (3d Cir. 2010) (“[T]he Eleventh Amendment does not bar suits
brought against state officials in their individual capacities,
even if the actions which are the subject of the suit were part
of their official duties.”).
18

The NJCRA is substantially similar to the federal civil
rights statutes, and “courts have interpreted the statute ‘in
terms nearly identical to its federal counterpart; Section
1983.’” Baklayan v. Ortiz, Civ. 11-03943 (CCC), 2012 WL 1150842,
at *6 (D.N.J. Apr. 5, 2012) (quoting Chapman v. New Jersey, Civ.
08–4130, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009)). Both
the NJCRA and section 1983 premise liability on the conduct of a
“person.” Courts in this District have consistently interpreted
the NJCRA as having incorporated Will. See Didiano v. Balicki,
Civ. 10-4483 (RBK/AMD), 2011 WL 1466131, at *8 (D.N.J. Apr. 18,
2011), aff’d, 488 F. App’x 634 (3d Cir. 2012); Chapman, 2009 WL
2634888, at *3; Slinger v. New Jersey, Civ. 07-5561 (DMC), 2008
WL 4126181, at *7 (D.N.J. Sept. 4, 2008), rev’d in part, 366 F.
App’x 357 (3d Cir. 2010). Therefore, Plaintiff’s claims against
the ACPO and Gravitz in her official capacity also fail as a
matter of law because they are not persons amenable to suit
under the NJCRA. 7
E.

Absolute Prosecutorial Immunity

County Defendants argue that Plaintiff’s motion to amend
should be denied as futile and Plaintiff’s claims should be

7

As with County Defendants’ sovereign immunity argument, the
argument that Defendants are not persons amenable to suit is not
fatal to Plaintiff’s proposed Amended Complaint to the extent
Plaintiff asserts claims against Gravitz in her individual
capacity.
19

dismissed because they are entitled to absolute prosecutorial
immunity. Plaintiff contends that Gravitz is not entitled to
absolute prosecutorial immunity for her role in investigating
the claim and directing the police in their investigation of the
alleged offense.
The Supreme Court has approved of absolute prosecutorial
immunity, but only in relation to those actions “intimately
associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “More than a mere
defense to liability, prosecutorial immunity embodies the ‘right
not to stand trial.’” Odd v. Malone, 538 F.3d 202, 207 (3d Cir.
2008) (quoting In re Montgomery County, 215 F.3d 367, 373 (3d
Cir. 2000)). Further, absolute prosecutorial immunity is a valid
defense to an individual capacity suit. Kentucky v. Graham, 473
U.S. 159, 166-67 (1985) (“When it comes to defenses to
liability, an official in a personal-capacity action may,
depending on his position, be able to assert personal immunity
defenses, such as objectively reasonable reliance on existing
law.”) (citing Imbler, 424 U.S. at 409); see also Hussein v. New
Jersey, Civ. 09-1291 (DRD), 2010 WL 891843, at *7 (D.N.J. Mar.
10, 2010). Therefore, addressing the concept of absolute
prosecutorial immunity is appropriate in a 12(b)(6) motion. Id.
A prosecutor bears the heavy burden of establishing
entitlement to absolute immunity. Odd, 538 F.3d at 207 (citing
20

Light v. Haws, 472 F.3d 74, 80–81 (3d Cir. 2007) (internal
quotation omitted)). Courts begin with the presumption that
qualified rather than absolute immunity is appropriate. Id. at
208 (citing Carter v. City of Philadelphia, 181 F.3d 339, 355
(3d Cir. 1999)).
As the Supreme Court has noted:
Almost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said
to be in some way related to the ultimate decision whether to
prosecute, but we have never indicated that absolute immunity
is that expansive. Rather, as in Imbler, we inquire whether
the prosecutor's actions are closely associated with the
judicial process.
Burns v. Reed, 500 U.S. 478, 495 (1991). 8 Therefore, “immunity
attaches to actions ‘intimately associated with the judicial
phases of litigation,’ but not to administrative or
investigatory actions unrelated to initiating and conducting
judicial proceedings.” Odd, 538 F.3d at 208 (citing Giuffre v.
Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994)). 9

8

In Burns, the Court considered whether absolute prosecutorial
immunity was applicable to (1) participation in a probable cause
hearing before issuance of a search warrant, and (2) legal
advice to the police regarding the use of hypnosis and the
existence of probable cause to arrest plaintiff. Burns, 500 U.S.
at 487. The Court held that absolute prosecutorial immunity
applied to the probable cause hearing, but not rendering legal
advice to the police. Id. at 492, 496.
9 In Odd, the Third Circuit considered whether prosecutors were
entitled to absolute immunity where unindicted third-party
witnesses remained incarcerated after it was clear that their
testimony was not needed for an extended period of time. The
court found the prosecutors’ conduct to be administrative in
21

The Third Circuit has stated that “prosecutorial immunity
analysis focuses on the unique facts of each case and requires a
careful dissection of the prosecutor’s actions.” Id.
Here, Plaintiff’s proposed Amended Complaint focuses on two
aspects of Gravitz’s conduct: (1) Gravitz allegedly personally
participated in investigatory acts and directed the
investigators in their acts of obtaining the alleged birth
certificate before Plaintiff was arrested and charged with an
offense and before seeking an indictment, and (2) Gravitz failed
to provide Plaintiff with a certified and/or notarized copy of
Cruz’s birth certificate after being charged. (Am. Compl. ¶¶ 3940.)
The present case implicates the distinction between
investigatory and prosecutorial functions. In Buckley v.
Fitzsimmons, 509 U.S. 259 (1993), prosecutors allegedly

nature where they failed in their obligation to inform the
relevant authorities that the cases in which the detained
plaintiffs were to testify were continued or dismissed. Odd, 538
F.3d at 216. In Giuffre, the Third Circuit considered whether a
prosecutor was entitled to absolute immunity where the defendant
prosecutor directed officers to question plaintiff about whether
certain property had been purchased with illegal drug proceeds
and approved a transaction in which plaintiff forfeited his
property to the county, which the county ultimately sold on the
prosecutor’s recommendation. Giuffre, 31 F.3d at 1252. The court
concluded that the prosecutor’s role in the negotiating and
authorizing the allegedly improper sale of plaintiff’s property
involved administrative duties not entitled to absolute
immunity. Id. at 1253.
22

fabricated evidence during the preliminary investigation of a
crime and made false statements at a press conference regarding
a grand jury indictment. Buckley, 509 U.S. at 261. The Court
found neither act entitled to absolute immunity. Id. at 275,
278. Regarding the fabrication of evidence, the Court
distinguished between the “advocate’s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on
the one hand, and the detective’s role in searching for the
clues and corroboration that might give him probable cause to
recommend that a suspect be arrested, on the other hand.” Id. at
273-74. The Court reasoned that “[w]hen a prosecutor performs
the investigative functions normally performed by a detective or
police officer, it is ‘neither appropriate nor justifiable that,
for the same act, immunity should protect the one and not the
other.’” Id. at 273-74 (citing Hampton v. Chicago, 484 F.2d 602,
608 (7th Cir. 1973)) (internal quotation omitted).
County Defendants rely on Kulwicki v. Dawson, 969 F.2d 1454
(3d Cir. 1992) for the proposition that immunity protects the
decision to initiate prosecution even where malice is alleged.
Kulwicki, 969 F.2d at 1465. However, County Defendants fail to
address the additional holding in Kulwicki that the conduct of
witness interviews before filing a criminal complaint is not
protected by absolute immunity. Id. at 1466. While eschewing a
bright line rule based on the filing of a criminal complaint,
23

the Third Circuit found that plaintiff’s claims involved
investigation rather than prosecution because the witnesses
initiated contact with the district attorney’s office and a
criminal complaint charging plaintiff with a crime was filed two
weeks after the interviews. Id.
Here, we must parse the allegations in Plaintiff’s proposed
Amended Complaint to examine whether Gravitz is entitled to
absolute prosecutorial immunity for any or all of her alleged
conduct. It is unclear at this stage of the case exactly what
the investigation entailed or when the police obtained the
handwritten birth certificate or whether the prosecutor had any
role in obtaining the document. The Amended Complaint does not
state explicitly if or when the police obtained an arrest
warrant. However, the allegations, as stated on the face of the
Amended Complaint, do not limit Gravitz’s conduct to evaluating
evidence in preparation for trial. Instead, the allegations
refer to her “investigatory acts” and the direction of others
before establishing probable cause to arrest Plaintiff or seek
an indictment. These allegations of directing an ongoing
investigation are sufficient to remove Gravitz’s conduct before
Plaintiff was charged with a crime from the protections of
absolute immunity.
On the other hand, Gravitz’s alleged failure to provide
Plaintiff’s attorney with a certified and/or notarized copy of
24

Cruz’s birth certificate after being charged and indicted falls
within the prosecutorial functions entitled to absolute
immunity. Such conduct cannot be construed as investigatory and
unquestionably involved Gravitz’s prosecution of the case during
which she acted as an advocate for the State. See Leventry v.
Watts, Civ. 06-193, 2007 WL 1469041, at *3 (W.D. Pa. May 17,
2007) (finding prosecutor’s alleged failure to cooperate with
discovery occurred after filing of complaint when prosecutor
acted in capacity as advocate entitled to absolute immunity);
Deffibaugh v. Harvey, Civ. 09-1749, 2010 WL 2079770, at *3 (M.D.
Pa. May 21, 2010) (holding that prosecutor’s decisions regarding
disclosure of documents and compliance with court discovery
orders were shielded by absolute immunity because these
decisions were related to his advocacy role in pending criminal
proceedings). Therefore, Gravitz is entitled to absolute
immunity, and the complaint against her in her individual
capacity will be dismissed, only to the extent Plaintiff’s
Amended Complaint relies on her failure to provide Plaintiff’s
counsel with a certified copy of the complainant’s birth
certificate after Plaintiff was charged and indicted.
F.

Qualified Immunity

County Defendants further argue that they are entitled to
qualified immunity because Gravitz did not know she was
violating Plaintiff’s constitutional rights by failing to
25

properly authenticate the birth certificate prior to Plaintiff’s
guilty plea. Plaintiff argues that his claim is based on
violation of his Fourth Amendment rights when he was arrested
and detained without probable cause, and Gravitz could have
easily learned that the handwritten birth certificate was not
valid.
The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
described the two-prong inquiry courts undertake in determining
whether a governmental officer is entitled to qualified
immunity. Saucier, 533 U.S. at 207. The Court must address
whether “the officer’s conduct violated a constitutional right”
and “whether the right was clearly established.” Id. at 201.
A right is clearly established when “[t]he contours of the
right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is
not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson v.
26

Creighton, 483 U.S. 635, 640 (1987). “This 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 (2009)
(quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). The Supreme
Court has instructed that the qualified immunity inquiry “must
be undertaken in light of the specific context of the case, not
as a broad general proposition.” Thomas v. Independence Twp.,
463 F.3d 285, 300 (3d Cir. 2006) (quoting Saucier, 533 U.S. at
201).
Having found Gravitz is entitled to absolute immunity for
the alleged failure to provide Plaintiff’s counsel with a
certified copy of the complainant’s birth certificate after
Plaintiff was charged and indicted, the only question remaining
is whether Gravitz is entitled to qualified immunity for her
alleged personal participation in investigatory acts and
direction of investigators in obtaining the allegedly fraudulent
birth certificate before Plaintiff was arrested and charged. As
such, the issue is whether a reasonable prosecutor could have
believed that the victim’s statement of her own age and the
handwritten birth certificate provided a basis for probable
cause to believe that the alleged victim of the crime under
investigation was a minor.

27

At the time of Plaintiff’s arrest in 2003, it was clearly
established that the Fourth Amendment prohibits arrests without
probable cause. Berg v. Cnty. of Allegheny, 219 F.3d 261, 269
(3d Cir. 2000). However, Gravitz is entitled to qualified
immunity for her role in the investigation as a matter of law if
it was objectively reasonable to believe that probable cause
existed or that prosecutors of reasonable competence could
disagree on whether the probable cause test was met. Vetere v.
O'Reilly, Civ. 88-1635 (AMW), 1990 WL 124844, at *11 (D.N.J.
Aug. 21, 1990), aff’d sub nom. Vetere v. Trumbull, 932 F.2d 962
(3d Cir. 1991) (quoting Robinson v. Via, 821 F.2d 913, 918 (2d
Cir. 1987)). In Vetere, the court found county prosecutors
entitled to qualified immunity where they approved and directed
the seizure of photographs from plaintiff’s residence believing
that plaintiff had taken pictures of a girl under age 16 in
violation of New Jersey law even though the prosecutors later
discovered that the girl was age 17 at the time of plaintiff’s
arrest and charges were subsequently dismissed. Id. The court
found defendants’ conduct to be objectively reasonable and in
good faith because defendants based their actions on a facially
sufficient federal search warrant and an accompanying affidavit
stating the girl’s birth date. Id.
The facts of the present case are analogous to those in
Vetere. For the purposes of this analysis the Court broadly
28

construes Plaintiff’s allegations in the proposed Amended
Complaint that Gravitz undertook investigatory acts, directed
the acts of others in obtaining the handwritten birth
certificate, and failed to properly authenticate the birth
certificate before seeking an indictment. The Court finds
however that Gravitz maintained an objectively reasonable belief
that the complaining victim was accurate about her own age and
the handwritten birth certificate was genuine during the
investigation and that probable cause existed for Plaintiff’s
arrest. Although it was later revealed to be fraudulent, there
is no allegation that the foreign birth certificate was so
facially deficient or inauthentic that Gravitz’s reliance upon
it was unreasonable. Further, there is no evidence that Gravitz
acted in bad faith in directing Plaintiff’s arrest or was aware
of exculpatory evidence that would have proved the complainant
was three years older than stated on the birth certificate. At
most, Gravitz’s conduct amounts to an honest mistake regarding
the validity of a birth certificate that later proved to be
fraudulent after contacting the Consul General of Honduras and
the Honduran Consulate’s staff attorney. While the Amended
Complaint alleges Gravitz failed in her duty to more thoroughly
investigate the authenticity of the foreign birth certificate,
such a failure would amount, at most, to negligence, which is
not actionable under section 1983. Believing the complaining
29

witness and the doctored Honduran birth certificate fall into
the category of an unfortunate mistake of judgment for which
this prosecutor receives qualified immunity for a constitutional
violation. Under the qualified immunity analysis, “officers can
have reasonable, but mistaken, beliefs as to probable cause . .
. and in those situations courts will not hold that they have
violated the Constitution.” Saucier, 533 U.S. at 205. Therefore,
the Court finds Gravitz entitled to qualified immunity for her
conduct in the investigatory phase.
IV.

Conclusion
For the reasons discussed above, the Court will grant

County Defendants’ motion to dismiss Plaintiff’s claims against
the ACPO and Gravitz in her official capacity based on sovereign
immunity and because they are not “persons” amenable to suit
under section 1983 and the NJCRA. The Court will deny
Plaintiff’s cross-motion to amend because Gravitz is entitled to
absolute immunity for her alleged failure to provide Plaintiff
with a certified copy of Cruz’s birth certificate after
Plaintiff was charged and indicted and is entitled to qualified
immunity for her alleged role in directing the investigation and
failing to authenticate the complainant’s birth certificate.
Because the Court finds Gravitz’s conduct covered by absolute or
qualified immunity even under the proposed Amended Complaint,

30

amendment would be futile. An accompanying Order will be
entered.

March 31, 2014
Date

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

31