COSTINO v. ANDERSON et al

Filing 39

OPINION. Signed by Judge Joseph H. Rodriguez on 12/20/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN G. COSTINO,

:

Hon. Joseph H. Rodriguez

Plaintiff,

:

Civil Action No. 14-6940

v.

:

POLICE OFFICER TONYA
ANDERSON, et al.,
Defendants.

OPINION

:
:

This matter is before the Court on a motion to dismiss the Amended
Complaint filed by Defendants Robert Taylor, Meghan Hoerner, Matthew
Weintraub, Tina Kell, George Hallett, and Lynn Frame 1 pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), which was joined by Defendants Little Egg
Harbor Township and Tonya Anderson. The Court has reviewed the

Defendant Robert L. Taylor, at all times relevant hereto, was the Cape
May County Prosecutor. (Am. Compl., ¶9.) Defendant Meghan Hoerner, at
all times relevant hereto, was a Cape May County Assistant Prosecutor.
(Am. Compl., ¶5.) Defendant Matthew D. Weintraub, at all times relevant
hereto, was a Cape May County Assistant Prosecutor. (Am. Compl., ¶6.)
Defendant Tina Kell, at all times relevant hereto, was a Cape May County
Assistant Prosecutor. (Am. Compl., ¶7.) Defendant George Hallett, at all
times relevant hereto, was a Detective in the Cape May County Prosecutor’s
Office. (Am. Compl., ¶3.) Defendant Lynn Frame, at all times relevant
hereto, was a Lieutenant Detective in the Cape May County Prosecutor’s
Office. (Am. Compl., ¶4.) The Amended Complaint characterizes Anderson,
Hallett, Frame, and Abbattisciani as the Law Enforcement Defendants and
Hoerner, Weintraub, Kell, and Taylor as Prosecutor Defendants. (Am.
Compl., ¶10, 11.)
1

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submissions and decides the matter based on the briefs pursuant to Fed. R.
Civ. P. 78(b). For the reasons stated here, the motion will be granted in part
and denied in part.
Background
For more than 30 years, Plaintiff John G. Costino was a practicing
physician treating patients in his North Wildwood office. (Am. Compl., ¶1 &
18.) In 2007, when the events giving rise to this lawsuit began, Costino
maintained a successful North Wildwood medical practice including
general internal medicine, sports medicine, pain management, acute care
for injured patients, and workers compensation related injuries. (Am.
Compl., ¶19.) At that time, Costino was the only pain management
physician in the Wildwoods; one of only two pain management physicians
in all of Cape May County. (Am. Compl., ¶20.) Costino’s multiple board
certifications included being a Fellow of the American Academy of Pain
Management. (Am. Compl., ¶21.) Costino was certified through the Drug
Enforcement Administration to treat patients with opioid (heroin)
addiction, and he was permitted to prescribe Suboxone to treat patients
with opioid addiction. (Am. Compl., ¶22.) By virtue of Costino’s training,
skill and reputation, he often received referrals from other physicians to
provide treatment for pain management to patients. (Am. Compl., ¶23.)

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Costino’s medical practice apparently came under the scrutiny of the
Cape May County Prosecutor’s office in 2005, as a result of a statistical
report identifying Costino as prescribing excessive amounts of addictive
pain medications. (Am. Compl., ¶24.) The fact that Costino was prescribing
a significant amount of addictive pain medications is explained by Plaintiff
as: (a.) A substantial portion of his practice was dedicated to pain
management patients and to the treatment of patients addicted to opioids;
and (b.) On three occasions in 2004 and 2005, prescription pads were
stolen from Costino’s office and used illegally to obtain addictive pain
medications. On each such occasion, Costino reported these thefts and the
perpetrators were prosecuted by the authorities. (Am. Compl., ¶25.) Thus,
Plaintiff contends the Cape May County Prosecutor’s office had actual
knowledge of the reason why an excessive amount of addictive pain
medication prescriptions may have appeared to have been prescribed by
Costino. (Am. Compl., ¶26.)
Nevertheless, in December 2005, the Cape May County Prosecutor’s
office sent an undercover detective to Costino’s office, posing as a heroin
addict. (Am. Compl., ¶27.) The detective, Agent Landis, attempted obtain a
prescription for pain medication. (Id.) Costino refused to prescribe the
medication because the patient presented as a heroin addict. (Id.) Instead,

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Costino urged the patient to enter the Suboxone program for treatment of
the heroin addiction. (Id.) After his undercover assignment concluded,
Agent Landis wrote a report that was favorable to Costino, there being no
evidence to support any allegation that Costino improperly prescribed
medication. (Id.)
On April 12, 2007, Defendant Little Egg Harbor Township Police
Officer Tonya Anderson, wired with a recording device, sought treatment
from Costino. (Am. Compl., ¶2 & 29.) She posed as an exotic dancer who
had been taking Percocet for pain without a valid prescription. (Id.) She
asked to establish herself as a patient of Costino’s practice and to obtain a
lawful prescription for Percocet. (Id.) Costino took a history and performed
a physical examination on defendant Anderson. (Id.) Costino diagnosed
Defendant Anderson with acute and chronic strain and sprain of the
thoracolumbar spine, primarily based upon her complaints relative to the
physical demands of dancing on a stage for eight hours per night. (Id.) She
signed Costino’s pain management agreement and left the office with a
valid prescription for 30 Percocet pills. (Id.)
On August 3, 2007, non-moving Defendant DEA Special Agent
Margarita Abbattiscianni, another undercover officer, also sought
treatment from Costino posing as an exotic dancer. (Am. Compl., ¶8 & 30.)

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Abbattiscianni complained of pain and difficulty with sleeping as a result of
her job keeping her up sometimes until 6:00 am. (Id.) She also left the
office with a valid prescription for 30 Percocet pills. (Id.) Defendants
Anderson and Abbattiscianni treated with Costino on several occasions in
2007, each time posing undercover as exotic dancers with pain symptoms
appearing to justify the use of Percocet as treatment. (Am. Compl., ¶31.)
Defendants sought and obtained an Indictment against Costino,
charging him with drug related offenses relating to the unlawful
distribution of controlled substances. (Am. Compl., ¶33.) In procuring the
indictment, and later a superseding indictment alleging unlawful
distribution of drugs and health insurance fraud, Defendants allegedly
concealed exculpatory evidence from the Grand Jury and from Costino,
knowingly procured and relied upon false certifications and testimony from
the Law Enforcement Defendants, and procured the alteration of evidence.
(Am. Compl., ¶34.)
Specifically, Plaintiff alleges that Anderson falsely certified that she
was pain free at the time of her treatment with Costino, when in fact, she
presented to Costino with objective indicia of pain, and was actually
treating with a chiropractor for her pain symptoms in her cervical, thoracic
and lumbar spine. (Am. Compl. ¶35.) The Prosecutor Defendants allegedly

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concealed the fact that Anderson was treating with the chiropractor for her
pain symptoms and failed to disclose this fact to the Grand Jury and/or
Costino. (Am. Compl. ¶36.) Further, Abbattiscianni allegedly presented to
Costino complaining of pain, but falsely testified that she did not mention
her pain symptoms to Costino during her office visit. (Am. Compl. ¶37.)
Her complaint of pain was secretly recorded and was noted on the original
official transcript of the secret recording. (Am. Compl. ¶37.) However,
Defendant Hallett, with the knowledge of the Prosecutor Defendants but
without the knowledge of Costino, allegedly instructed the official
transcriber of the secret recording to change the official transcript to omit
the fact that Abbattiscianni had mentioned her pain during her office visit
with Costino. (Am. Compl. ¶38.) The altered transcript allegedly was
utilized by the Prosecutor Defendants in connection with the subsequent
prosecution of Costino. (Am. Compl. ¶39.) The Prosecutor Defendants and
Defendant Hallett allegedly falsely informed the Grand Jury that Costino
did not maintain a medical record of his treatment with Defendant
Abbattiscianni, and therefore, that his treatment of her was completely
undocumented. (Am. Compl. ¶40.) The Prosecutor Defendants and
Defendant Hallett knew this contention to be false, however, because
Costino’s attorney had previously notified the Prosecutor Defendants of the

6

whereabouts of the file, and also of the fact that the Law Enforcement
Defendants’ clerical mistake in misspelling the patient’s name “Artiz”
instead of “Ortiz” had led to the initial failure to locate the file. (Am. Compl.
¶41.)
In September 2007, approximately 25 law enforcement officers
stormed Costino’s office, placed him in handcuffs, and seized records from
his medical practice. (Am. Compl., ¶43.) At that time, Costino was arrested
and taken into police custody. (Id.) There he remained until he was able to
post $100,000 bail. (Id.) Additionally, Defendants allegedly provided false
and misleading evidence to the State of New Jersey Board of Medical
Examiners resulting in Costino being falsely accused of professional
misconduct and in the revocation of his medical license. (Am. Compl., ¶44.)
After more than five years, the criminal charges were tried before the
Honorable Raymond A. Batten in the Superior Court of Cape May County.
(Am. Compl., ¶46.) Costino testified on his own behalf. (Am. Compl., ¶47.)
After deliberating less than two hours, on November 8, 2012, the jury
returned a verdict in favor of Costino and he was acquitted of all criminal
charges. (Am. Compl., ¶48.)
Costino has filed a civil rights complaint in this Court. Beside the
individual Defendants described above, Plaintiff has named Cape May

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County and Little Egg Harbor Township as Defendants. In Count I of the
Amended Complaint, Costino has asserted claims against the individual
Defendants for the violation of his 4th and 14th Amendment rights (1) to be
free from malicious prosecution without probable cause and (2) to due
process. He alleges that the Defendants worked in concert to secure false
charges against him resulting in his arrest, confinement, and prosecution.
Count II alleges deliberately indifferent policies, procedures, customs,
and/or practices as well as deliberately indifferent training and supervision
by the “Government Defendants,” Cape May County and Little Egg Harbor
Township, (see Am. Compl. ¶ 12-13), in violation of Plaintiff’s 4th and 14th
Amendment rights. Count II is not at issue in this motion. In Count III,
Costino asserts a claim against all Defendants for malicious prosecution in
violation of the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-1. Count
IV alleges malicious prosecution by all Defendants in violation of N.J. Stat.
Ann. § 2A:47A-1 and demands punitive damages. Defendants have moved
for dismissal of Count IV for failure to comply with the notice requirements
of New Jersey’s Tort Claims Act. Plaintiff has not opposed this aspect of the
motion, so Count IV will be dismissed. Accordingly, the remainder of the
Opinion addresses the claims presented by Counts I and III of the Amended
Complaint.

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Applicable Standards
A motion to dismiss for lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(1) must be granted if the court lacks subject matter
jurisdiction to hear a claim. In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). When a
defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden
of establishing subject matter jurisdiction for the sake of remaining in
federal court. Gould Elec., Inc. v. United States, 220 F.3d 169, 178 (3d Cir.
2000). The Court applies this standard to the issue of immunity. See Young
v. United States, 152 F. Supp. 3d 337, 344 (D.N.J. 2015).
A motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) may involve either a facial challenge to subject matter jurisdiction
or a factual challenge to the jurisdictional allegations. Gould Elec., 220 F.3d
at 176. If the defendant’s attack is facial—i.e., “asserting that the complaint,
on its face, does not allege sufficient grounds to establish subject matter
jurisdiction”—a court must accept all allegations in the complaint as true.
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006).
Alternatively, a defendant may “challenge a federal court’s jurisdiction by
factually attacking the plaintiff's jurisdictional allegations as set forth in the
complaint.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891

9

(3d Cir. 1977). A factual challenge attacks the existence of a court’s subject
matter jurisdiction apart from any of the pleadings and, when considering
such a challenge, a presumption of truthfulness does not attach to a
plaintiff's allegations.” Id.; see also Martinez v. U.S. Post Office, 875 F.
Supp. 1067, 1070 (D.N.J. 1995).
Alternatively, Federal Rule of Civil Procedure 12(b)(6) allows a party
to move for dismissal of a claim based on “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint should
be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true,
fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the
complaint, matters of public record, orders, and exhibits attached to the
complaint, are taken into consideration. 2 See Chester County Intermediate
Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not
necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561
F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether

Although a district court may not consider matters extraneous to the
pleadings, a document integral to or explicitly relied upon in the complaint
may be considered without converting the motion to dismiss into one for
summary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383,
388 (3d Cir. 2002) (internal quotation marks and citations omitted)
(emphasis deleted).
2“

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the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144,
150 (2007). Instead, the Court simply asks whether the plaintiff has
articulated “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility 3 when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
The Court need not accept “‘unsupported conclusions and
unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007) (citation omitted), however, and “[l]egal conclusions made in the
guise of factual allegations . . . are given no presumption of truthfulness.”
Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006)
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v.

This plausibility standard requires more than a mere possibility that
unlawful conduct has occurred. “When a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.’’” Id.
3

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Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423
F.3d 347, 351 (3d Cir. 2005) (“[A] court need not credit either ‘bald
assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to
dismiss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that
are no more than conclusions are not entitled to the assumption of truth).
Further, although “detailed factual allegations” are not necessary, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of a
cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal
citations omitted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”).
Thus, a motion to dismiss should be granted unless the plaintiff’s
factual allegations are “enough to raise a right to relief above the
speculative level on the assumption that all of the complaint’s allegations
are true (even if doubtful in fact).” Twombly, 550 U.S. at 556. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not ‘shown’‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679.

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Discussion
42 U.S.C. § 1983
Plaintiff’s Constitutional claims are governed by Title 42 U.S.C. §
1983, which provides a civil remedy against any person who, under color of
state law, deprives another of rights protected by the United States
Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120
(1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of
the statute:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the 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.
See 42 U.S.C. § 1983.
As the above language makes clear, Section 1983 is a remedial statute
designed to redress deprivations of rights secured by the Constitution and
its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3
(1979). By its own words, therefore, Section 1983 “does not . . . create
substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006) (citing Baker, 443 U.S. at 145, n.3).

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To state a cognizable claim under Section 1983, a plaintiff must allege
a “deprivation of a constitutional right and that the constitutional
deprivation was caused by a person acting under the color of state law.”
Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must
demonstrate two essential elements to maintain a claim under § 1983: (1)
that the plaintiff was deprived of a “right or privileges secured by the
Constitution or the laws of the United States” and (2) that plaintiff was
deprived of his rights by a person acting under the color of state law.
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
A similar analysis may be made regarding any claim under the New
Jersey Civil Rights Act, as the two generally are interpreted in parallel. See
Ingram v. Twp. Of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012);
Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
Therefore, the Court will not undertake a separate analysis of Plaintiff’s
claim under the New Jersey Civil Rights Act presented by Count III.
Eleventh Amendment Sovereign Immunity
Defendants initially move for dismissal under Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks subject matter jurisdiction
because the Defendants enjoy sovereign immunity under the Eleventh

14

Amendment. The Eleventh Amendment incorporates a general principle of
sovereign immunity that bars citizens from bringing suits for damages
against any State in federal court. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1984). Sovereign immunity extends to
State agencies and State officers, “as long as the state is the real party in
interest.” Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d Cir.
1989). It does not extend to counties and municipalities. Mt. Healthy City
Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Bolden v. Southeastern Pa.
Transp. Auth., 953 F.2d 807, 813-14 (3d Cir. 1991) (“[A]lthough political
subdivisions of a state, such as counties and municipalities, fall within the
term ‘State’ as used in the Fourteenth Amendment, political subdivisions
are not ‘State[s]’ under the Eleventh Amendment.”).4
Amenability to Suit as “Persons” under § 1983 and the NJCRA
The United States Supreme Court has held that “neither a State nor
its officials acting under their official capacities are ‘persons’ amenable to
suit under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

Additionally, application of the Eleventh Amendment involves factual
issues that cannot be resolved from the face of the Complaint. Mortensen,
549 F.2d at 891. Such issues include (1) whether payment of any judgment
against the defendants would come from the State treasury, (2) the status of
the prosecutor’s office under State law, and (3) the county prosecutor’s
degree of autonomy. See Fitchik, 873 F.2d at 659.
4

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(1989). As such, an employee of the State named as a defendant in a civil
rights action may be held liable only if that person has personal
involvement in the alleged wrongs and is sued in their personal capacity.
See Hafer v. Melo, 502 U.S. 21, 31 (1991) (“state officials, sued in their
individual capacities, are ‘persons’ within the meaning of § 1983”). “Local
government bodies and their officials, by contrast, are regarded as ‘persons’
amenable to suit under § 1983.” Estate of Lagano v. Bergen Cty.
Prosecutor’s Office, 769 F.3d 850, 854 (3d Cir. 2014) (citing Monell v.
Department of Social Servs., 436 U.S. 658, 690 (1978)).
“When county prosecutors engage in classic law enforcement and
investigative functions, they act as officers of the State.” Coleman v. Kaye,
87 F.3d 1491, 1505 (3d Cir. 1996). “When county prosecutors perform
administrative functions ‘unrelated to the duties involved in criminal
prosecution,’ however, they act as county officials.” Lagano, 769 F.3d at 855
(quoting Coleman, 87 F.3d at 1505-06).
Moving Defendants have argued that they are not “persons” amenable
to suit under § 1983 because the county prosecutors engaged in classic law
enforcement functions are arms of the State. Plaintiff acknowledges this,
and states that his claims against the moving Defendants have been
brought only in their individual capacities. See Am. Compl. ¶ 53. As such,

16

Counts I and III will be analyzed only insofar as they are asserted against
moving Defendants in their individual capacities.
Immunities
Individuals named as defendants in their personal capacities are
amenable to suit under § 1983 as “persons.” Lagano, 769 F.3d at 856.
“Officials sued in their personal capacities . . . may assert personal
immunity defenses.” Hafer, 502 U.S. at 25.
Defendants Robert Taylor, Meghan Hoerner, Matthew Weintraub,
and Tina Kell in their individual capacities argue that they enjoy absolute
prosecutorial immunity. Where a prosecutor acts within the scope of his or
her duties “in initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under § 1983.” Imbler v.
Pachtman, 424 U.S. 409, 430 (1976) (affirming dismissal of plaintiff’s §
1983 suit against district attorney grounded in part upon the district
attorney’s alleged knowing use of perjured testimony). This immunity is
limited to activities that are “intimately associated with the judicial phase of
the criminal process.” Id. (utilizing a “functional approach” to include the
alleged knowing use of false testimony at trial and the alleged deliberate
suppression of exculpatory evidence). See also Yarris v. Delaware County,
465 F.3d 129, 137 (3d Cir. 2007) (claims based on failure to turn over

17

exculpatory evidence are shielded by absolute immunity); Rose v. Bartle,
871 F.2d 331, 344 (3d Cir. 1989) (solicitation of testimony, even where
false, for use in grand jury proceedings is immunized as encompassed
within the preparation necessary to present a case). “By contrast, a
prosecutor acting in an investigative or administrative capacity is protected
only by qualified immunity.” Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d
Cir. 1992). “In addition, there may be instances where a prosecutor’s
behavior falls completely outside the prosecutorial role. In that case, no
absolute immunity is available.” Id. (citing Rose, 871 F.2d at 346). “A
prosecutor bears the heavy burden of establishing entitlement to absolute
immunity.” Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (citations and
quotation omitted).
Plaintiff has alleged that the individual “Defendants concealed
exculpatory evidence from the Grand Jury and from Costino, knowingly
procured and relied upon false certifications and testimony from the Law
Enforcement Defendants, and procured the alteration of evidence.” (Am.
Compl. ¶ 34.)5 Notably, Plaintiff’s claim is not based upon the moving

These Defendants also allegedly “provided false and misleading evidence
to the State of New Jersey Board of Medical Examiners, resulting in Costino
being falsely accused of professional misconduct and in the revocation of
his medical license.” (Am. Compl. ¶ 35.) While this conduct is outside the
realm of the judicial phase of the criminal proceeding, the result before the
5

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Defendants’ decision to initiate prosecution. Even if the prosecutors lacked
a good faith belief that any wrongdoing had occurred, that decision would
be absolutely immune from suit. See Kulwicki, 969 F.2d at 1463-64.
Similarly, however, all of the acts complained of are shielded by
prosecutorial immunity. Further, the Amended Complaint details no facts
specific to Taylor, Hoerner, Weintraub, or Kell. The motion to dismiss as to
these Defendants is granted.
Next, Defendants George Hallett and Lynn Frame in their individual
capacities argue that they enjoy qualified immunity. The doctrine of
qualified immunity provides that “government officials performing
discretionary functions . . . are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, government officials
are immune from suit in their individual capacities unless, “taken in the
light most favorable to the party asserting the injury, . . . the facts alleged
show the officer’s conduct violated a constitutional right” and “the right was
clearly established” at the time of the objectionable conduct. Saucier v.

Board was not favorable to Costino, so this allegation does not support a
malicious prosecution claim.
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Katz, 533 U.S. 194, 201 (2001). Courts may exercise discretion in deciding
which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
This doctrine “balances two important interests—the need to hold
public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably” and it “applies regardless of whether
the government official’s error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact. Id. (internal quotation
omitted). Properly applied, qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
For a right to be clearly established, “[t]he contours of the right must
be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he
relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his

20

conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446
F.3d 483, 492 (2006). “If the officer’s mistake as to what the law requires is
reasonable,” the officer is entitled to qualified immunity. Couden, 446 F.3d
at 492 (internal citations omitted). Further, “[i]f officers of reasonable
competence could disagree on th[e] issue, immunity should be recognized.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). See also Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of
the official was reasonable at the time it occurred.); Kulwicki, 969 F.2d at
1463 (“Objective reasonableness is measured by the amount of knowledge
available to the officer at the time of the alleged violation.”). Finally,
because qualified immunity is an affirmative defense, the burden of proving
its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256
F.3d 120, 142, n.15 (3d Cir. 2001).
The Amended Complaint alleges Defendants Anderson and
Abbattiscianni concealed facts from the Grand Jury and Hallett actually
altered evidence presented to the Grand Jury, thereby introducing
fabricated evidence to engineer a false arrest and prosecute unfounded
charges. If true, such would constitute a violation of clearly established law
that would have been apparent to a reasonable officer. See, e.g., Orsatti v.
New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995) (as of 1989, “the

21

right to be free from arrest except on probable cause was clearly
established”). The motion to dismiss on grounds of qualified immunity as
to these Defendants must therefore be denied at this stage of the litigation.
Plaintiff has made no factual allegations as to Defendant Frame that
warrant her remaining in the case.
Malicious Prosecution Claim Itself
As to the remaining Defendants, the Court finds that the essential
elements of malicious prosecution have been sufficiently alleged. To
establish malicious prosecution under § 1983, a plaintiff must establish
that: (1) the defendant initiated a criminal proceeding; (2) the plaintiff
suffered a deprivation of liberty consistent with the concept of seizure as a
consequence of a legal proceeding; (3) the criminal prosecution resulted in
plaintiff's favor; (4) the proceeding was initiated without probable cause;
and (5) the defendant acted maliciously or for a purpose other than
bringing the plaintiff to justice. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d
Cir. 2014); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.
2005); Santiago v. City of Vineland, 107 F. Supp. 2d 512, 566 (D.N.J.
2000).
Probable cause may be subverted where an officer “knowingly and
deliberately, or with a reckless disregard for the truth, made false

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statements or omissions that create a falsehood” and “[s]uch statements or
omissions are material, or necessary, to the finding of probable cause.”
Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000). In seeking a charge
or arrest warrant, officers may not rely on facts of which they had a “high
degree of awareness of [their] probable falsity”—meaning that, “when
viewing all the evidence, [they] must have entertained serious doubts as to
the truth of his statements or had obvious reasons to doubt the accuracy of
the information ... reported.” Id. See also Halsey, 750 F.3d at 289 (“When
falsified evidence is used as a basis to initiate the prosecution of a
defendant, or is used to convict him, the defendant has been injured
regardless of whether the totality of the evidence, excluding the fabricated
evidence, would have given the state actor a probable cause defense in a
malicious prosecution action that a defendant later brought against him.”).
In this case, probable cause found by the grand jury “may be rebutted by
evidence that the presentment was procured by fraud, perjury or other
corrupt means.” Rose, 871 F.2d at 353. It is, therefore, “a sufficiently factladen issue as to typically be a question for the jury.” Stolinski v.
Pennypacker, 772 F. Supp. 2d 626, 638 (D.N.J. 2011).

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Conclusion
For these reasons, the motion to dismiss is granted as to Defendants
Robert Taylor, Meghan Hoerner, Matthew Weintraub, Tina Kell, and Lynn
Frame. The motion is denied as to Defendants George Hallett, Little Egg
Harbor Township, and Tonya Anderson. Defendants Cape May County and
Margarita Abbattiscianni have not moved for dismissal and remain in the
case. An Order will accompany this Opinion.

Dated: December 20, 2016

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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