COSTINO v. ANDERSON et al

Filing 57

OPINION. Signed by Judge Joseph H. Rodriguez on 10/4/2017. (rtm, )

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 Defendant Cape May County 1 pursuant to Fed. R. Civ. P.
12(b)(6). The Court has reviewed the 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.

Also named as Defendants were Robert L. Taylor, the Cape May County
Prosecutor (Am. Compl., ¶9); Meghan Hoerner, a Cape May County
Assistant Prosecutor (Am. Compl., ¶5); Matthew D. Weintraub, a Cape May
County Assistant Prosecutor (Am. Compl., ¶6); Tina Kell, a Cape May
County Assistant Prosecutor (Am. Compl., ¶7); George Hallett, a Detective
in the Cape May County Prosecutor’s Office (Am. Compl., ¶3); Lynn Frame,
a Lieutenant Detective in the Cape May County Prosecutor’s Office (Am.
Compl., ¶4); and Little Egg Harbor Police Officer Tonya Anderson (Am.
Comp., ¶2). 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.) Along with Cape May County, Little Egg Harbor Township
was named as a “Government Defendant.” (Am. Compl., ¶13, 14.)
1

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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.)
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

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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,
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

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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.)
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

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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
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

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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
whereabouts of the file, and also of the fact that the Law Enforcement
Defendants’ clerical mistake in misspelling the patient’s name “Artiz”

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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. 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

7

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. 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. Count IV has been dismissed from the case, as have all
claims against Defendants Robert Taylor, Meghan Hoerner, Matthew
Weintraub, Tina Kell, and Lynn Frame. Previous motions to dismiss have
been denied as to Defendants George Hallett, Little Egg Harbor Township,
and Tonya Anderson.
Applicable Standards
Plaintiff claims that the Defendant’s motion to dismiss is untimely.
However, to avoid Rule 12(b)’s timing provision, district courts within the
Third Circuit have construed untimely motions to dismiss as motions for
judgment on the pleadings under Fed. R. Civ. P. 12(c). See We the People

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in Republic Clarissa Aline v. Temple Univ. Hosp., 2004 WL 2004370, at *1
(E.D. Pa. Aug. 8, 2004). The Court does so here.
“After the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). When
considering a Federal Rule of Civil Procedure 12(c) motion for judgment on
the pleadings based on the defense that the plaintiff has failed to state a
claim, courts analyze the motion under the same legal standards that apply
to a motion to dismiss for failure to state a claim under Rule
12(b)(6). Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir.
2010) (citing Turbe v. Gov’t of the V.I., 938 F.2d 427, 428 (3d Cir.
1991)); see also Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (“There is
no material difference in the applicable legal standards.”).
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

9

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 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

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“

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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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.
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.”).

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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.
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.

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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).
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).
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Municipal Liability
A municipality is not liable under 42 U.S.C. § 1983 on a respondeat
superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691
(1978). However, a government entity may be liable for its agent’s actions
upon a demonstration that a policy or custom of the municipality caused, or
was a “moving force” behind, the alleged violation of Plaintiff’s rights.
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v.
Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996). Thus, in order to prevail against the government entity,
“[a] plaintiff must identify the challenged policy, attribute it to the city
itself, and show a causal link between execution of the policy and the injury
suffered.” Losch v. Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).
A plaintiff cannot seek to hold a municipality liable for damages
where the officer has inflicted no constitutional harm. Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 217 n.12 (3d Cir. 2009) (citing
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, before
addressing deliberate indifference and causation, a court must first address
whether there was a constitutional violation at all. See Grazier, 328 F.3d at
124 (“municipal liability requires constitutional harm”); cf., Thomas, 749

14

F.3d at 223 (“The parties do not challenge the existence of . . . a
constitutional violation on appeal.”).
Moreover, the United States Supreme Court has held that “neither a
State nor its officials acting under their official capacities are ‘persons’
under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (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”).
Analysis
A thorough review of the Amended Complaint, as outlined above, fails
to reveal any facts sufficient to state a plausible claim against Cape May
County. The Amended Complaint does not identify conduct of a municipal
decisionmaker or specify a custom or policy of Cape May County that could
form the basis for municipal liability. Rather, the Amended Complaint
states:
The Government Defendants developed and maintained policies,
procedures, customs and/or practices exhibiting deliberate
indifference to the constitutional rights of citizens, which were
moving forces behind and proximately caused the violations of
Costino’s constitutional rights as aforesaid.

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The Government Defendants have created and tolerated an
atmosphere of lawlessness, and have developed and maintained longstanding, department-wide customs, law enforcement related
policies, procedures, customs, practices, and/or failed to properly
train and/or supervise their employees in a manner amounting to
deliberate indifference to the constitutional rights of Costino and of
the public.
The deliberately indifferent training and supervision provided by the
Government Defendants resulted from a conscious or deliberate
choice to follow a course of action from among various alternatives
available to them and were moving forces in the constitutional
injuries suffered by Costino.
(Am. Compl., ¶ 66-68.) These conclusory allegations are unsupported by
any facts alleged and therefore are insufficient to state a plausible Monell
claim to survive a motion to dismiss. Accordingly, the motion to dismiss the
Amended Complaint filed by Defendant Cape May County will be granted.
Conclusion
For these reasons, Defendant Cape May County will be dismissed as a
Defendant. An Order will accompany this Opinion.

Dated: October 4, 2017

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

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