QUEENSBURY v. PETRONE et al

Filing 21

OPINION. Signed by Judge Renee Marie Bumb on 8/7/2015. (TH, )

NOT FOR PUBLICATION

[Dkt. Ent. 15]

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

SHERRON K. QUEENSBURY,
No. 14-cv-7230 (RMB/AMD)
Plaintiff,
v.

OPINION

DANA PETRONE, et al.,
Defendants.

Appearances:
Paul D. Santangini
Garber Law P.C.
1200 Laurel Oak Road
Suite 104
Voorhees, N.J. 08043
Attorney for Plaintiff
Sherron K. Queensbury
Ione Kristy Curva
State of New Jersey
Office of the Attorney General
124 Halsey Street, 5th Floor
P.O. Box 45029
Newark, N.J. 07101
Kristen Nicole Collar
Susan Marie Scott
State of New Jersey
Office of the Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, N.J. 08625
Attorneys for Defendants
Dana Petrone and
Camden County Prosecutor’s Office

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BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon a Motion to Dismiss
filed by defendants Assistant Prosecutor Dana Petrone
(“Petrone”) and the Camden County Prosecutor’s Office (the
“CCPO”) (collectively, the “Defendants”).

(Dkt. Ent. 15.)

Defendants seek to dismiss all Counts of plaintiff Sherron K.
Queensbury’s (the “Plaintiff”) Complaint, which allege
constitutional violations against Petrone pursuant to 42 U.S.C.
§ 1983 (Count I), false imprisonment against Petrone (Count II),
constitutional violations against Camden County and the CCPO
pursuant to 42 U.S.C. § 1983 (Count III), false imprisonment
against the CCPO via respondeat superior (Count IV), intentional
infliction of emotional distress against Petrone (Count V), and
negligent infliction of emotional distress against Petrone
(Count VI).

(Compl. ¶¶ 25, 27-28, 30-34, 36, 38-39, 44.)

Plaintiff has not filed a brief in opposition.

For the reasons

set forth below, Defendants’ Motion to Dismiss shall be granted.
I.

Factual Background
On or about March 10, 2013, Adrian Lomonico (“Adrian”)

filed a complaint with the Lindenwold Police Department
(“Lindenwold PD”) “alleging that he was the victim of an armed
robbery” perpetrated by Plaintiff.

(Compl. ¶¶ 9-10.)

Plaintiff

was subsequently charged with two warrants on March 13, 2013,
“alleging Robbery, a crime of the first degree, in violation of

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N.J.S.A. 2C:15-1A(3) and Possession of a Weapon for an Unlawful
Purpose, a crime of the second degree, in violation of N.J.S.A.
2C:39-4A.”

(Id. at ¶ 11.)

Plaintiff alleges that on or about October 3, 2013, his
attorney gave Petrone “an investigative report which included
evidence that was clearly exculpatory and directly negated
Plaintiff’s guilt.”

(Id. at ¶ 13.)

Included in this report was

a statement from Adrian’s sister-in-law, Rasheeda Lomonico
(“Rasheeda”), which stated: “Adrian Lomonico wrote a letter to
the [Camden County] Prosecutor’s Office, in which he falsely
accused Mr. Queensbury of sending someone to Lomonico’s home to
shoot him,” id. at ¶ 14(a); that she “heard Adrian admit he was
sending the letter because he needed some money to get to
Michigan,” id. at ¶ 14(b); that Adrian “had been involved with
Plaintiff’s wife since just before the charges were brought
forth,” id. at ¶ 14(c); and that Adrian “previously filed a
false police report against his brother, Corey Lomonico,
alleging that Corey Lomonico threatened to kill Adrian with a
gun,” id. at ¶ 14(d).

Also included in this investigative

report were court documents which evidenced Adrian’s previous
filing of a false police report.

(Id. at ¶ 15.)

Lastly, the

investigative report included a statement from Corey Lomonico
(“Corey”), which stated that Corey saw Adrian “write a letter to
the [CCPO] falsely accusing Plaintiff Queensbury,” id. at ¶

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16(a), and that Corey “questioned Adrian why he was lying to the
[CCPO] and Adrian confessed ‘so I can get some money from the
investigator to go to Michigan for a while,’” id. at ¶ 16(b).
On October 31, 2013, a Camden County Grand Jury indicted
Plaintiff upon a complaint presented by Petrone, and Plaintiff
was incarcerated on $100,000.00 full cash bail.

(State v.

Sherron K. Queensbury, Indictment No. 3233-11-12; Compl. ¶ 19.)
On December 5, 2013, Petrone presented exculpatory evidence that
“directly negated the Plaintiff’s guilt to the Camden County
Grand Jury for a superseding indictment and the proposed
indictment was no billed, necessitating Plaintiff’s release from
Camden County Jail on or about December 5, 2013.”

(Compl. ¶

19.)
II.

Procedural Background
Plaintiff commenced this action on November 19, 2014,

alleging constitutional violations and false imprisonment
against both Petrone and the CCPO, as well as intentional
infliction of emotional distress and negligent infliction of
emotional distress against Petrone.

(Dkt. Ent. 1.)

Defendants

subsequently filed their Motion To Dismiss on March 24, 2015.
(Dkt. Ent. 15.)
III.

The motion is unopposed.

Standards of Review
Defendants bring this Motion to Dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and (6).

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A.

Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) motions may
challenge subject-matter jurisdiction based upon the complaint’s
face or its underlying facts.

Pittman v. Metuchen Police Dept.,

No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009) (citing
James Wm. Moore, 2 Moore’s Federal Practice § 12.30[4] (3d ed.
2007)).

“A facial attack questions the sufficiency of the

pleading, and in reviewing a facial attack, a trial court
accepts the allegations in the complaint as true.”

Id.

A

factual attack, by contrast, calls upon the court to engage in a
weighing of the evidence.

Id.

Although a court’s inquiry when

considering a motion to dismiss is normally limited in scope to
the pleadings and related documents, a Federal Rule of Civil
Procedure 12(b)(1) motion based upon a factual challenge enables
consideration of evidence extrinsic to the pleadings, such as
depositions and affidavits.

Gould Electronics Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Gotha v. United
States, 115 F.3d 176, 178-79 (3d Cir. 1997)).
B.

Fed. R. Civ. P. 12(b)(6)

“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face’” in order to withstand a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)).

Claims are facially

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” and “an unadorned, thedefendant-unlawfully harmed-me accusation” will not survive a
motion to dismiss.

Id. at 663, 678.

“[A] plaintiff's

obligation to provide the ‘grounds' of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)).
The district court “must accept as true all well-pled
factual allegations as well as all reasonable inferences that
can be drawn from them, and construe those allegations in the
light most favorable to the plaintiff” when reviewing a
plaintiff’s allegations.
Cir. 2012).

Bistrian v. Levi, 696 F.3d 352 n.1 (3d

Only the allegations in the complaint, and “matters

of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case” are taken into
consideration.

Oshiver v. Levin, Fishbein, Sedran & Berman, 38

F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing Chester County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).

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IV.

Analysis
In support of the Motion to Dismiss Plaintiff’s Complaint,

Defendants set forth the following arguments:
•
•
•
•
•
•
•

Plaintiff’s claims are barred by the Eleventh Amendment of
the United States Constitution;
Plaintiff’s 42 U.S.C. § 1983 claims must be dismissed
because Defendants are not “persons” amenable to suit under
42 U.S.C. § 1983;
Plaintiff’s state constitutional claims must be dismissed
because Defendants are not “persons” amenable to suit under
the New Jersey Civil Rights Act;
Plaintiff’s claims must be dismissed because Petrone is
protected by absolute prosecutorial immunity;
Plaintiff’s state law tort claims must be dismissed because
Plaintiff did not file a notice of tort claim;
Counts II, V, and VI must be dismissed because Petrone is
protected by statutory immunity under the New Jersey Tort
Claims Act;
Plaintiff’s intentional and negligent infliction of
emotional distress claims must be dismissed because
Plaintiff did not plead the requisite elements;

(Br. in Supp. of Defs.’ Mot. to Dismiss 11-36.)

The Court

addresses these arguments below.
1.

Constitutional Violation Claims

Defendants argue that Plaintiff’s allegations of
constitutional violations must be dismissed under Federal Rule
of Civil Procedure 12(b)(1) because, in their official capacity,
(A) they are immune from such claims and (B) they are not
“persons” amenable to such claims, whether Plaintiff brings them

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pursuant to 42 U.S.C. § 1983 or the New Jersey Civil Rights Act
(“NJCRA”). 1
A.

The Court addresses these arguments in turn.

Immunity

Plaintiff’s claims for constitutional violations are barred
by both sovereign and absolute prosecutorial immunity.
i.

Sovereign Immunity

First, Defendants argue that “Plaintiff’s claims brought
pursuant to 42 U.S.C. § 1983 against the CCPO must be dismissed
as the CCPO is an arm of the State when acting within its law
enforcement capacity, and is subject to the same immunities as
the State.”

(Br. in Supp. of Defs.’ Mot. to Dismiss 16-22.)

The doctrine of sovereign immunity and the Eleventh Amendment 2 of
the United States Constitution protect state agencies and
officials acting in their official capacity from suits brought
pursuant to 42 U.S.C. § 1983.

See, e.g., Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 64-71 (1989).

Furthermore, the State

need not be a named defendant to be afforded Eleventh Amendment

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Plaintiff expressly brings his constitutional allegations under
42 U.S.C. § 1983, but may, as noted by Defendants, be bringing
them pursuant to the New Jersey Civil Rights Act. (Compl. ¶¶
24-25, 29-34; Br. in Supp. of Defs.’ Mot. to Dismiss 18.)
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The Eleventh Amendment to the United States Constitution states
that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign state.”
U.S. Const. amend. XI.

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immunity as long as it is the real party in interest.
City of Phila., 181 F.3d 339, 347 (3d Cir. 1999).

Carter v.

Thus, to the

extent Plaintiff has asserted claims against Defendants in their
official capacities, Plaintiff’s constitutional claims must be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). 3
ii.

Absolute Prosecutorial Immunity

Defendants also argue that Plaintiff’s allegations against
Defendants must be dismissed because Petrone is protected by
absolute prosecutorial immunity.
to Dismiss 22.)
argument.

(Br. in Supp. of Defs.’ Mot.

The case law on this issue supports the

Indeed, the Third Circuit has noted that “the Supreme

Court held that state prosecutors are absolutely immune from
liability under § 1983 for actions performed in a quasi-judicial
role.”

Yarris v. Cnty. of Del., 465 F.3d 129, 135 (3d Cir.

2006) (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).
Furthermore, “[i]t is well settled that prosecutors are entitled
to absolute immunity from claims based on their failure to
disclose exculpatory evidence, so long as they did so while

3

Defendants are also correct, in the alternative, that in their
official capacities, they are not “persons” amenable to suit
under § 1983 or the NJCRA. See, e.g., Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71 (1989)("We hold that neither a
State nor its officials acting in their official capacities are
'persons' under § 1983."); Delbridge v. Schaeffer, 238 N.J.
Super. 323, 569 A.2d 872, 889 (1989)("[N]either a state nor its
alter ego is a person for purposes of § 1983 regardless of
whether the action is brought in state or federal court.").

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functioning in their prosecutorial capacity.”
at 137.

Yarris, 465 F.3d

In Yarris, the court found that absolute immunity

applied where prosecutors failed to disclose exculpatory
evidence, 465 F.3d at 137.

Here, Plaintiff alleges that Petrone

failed to initially utilize exculpatory evidence while acting in
her prosecutorial capacity, stating: “Pe[t]rone presented the
false complaint of Adrian Lomonico to a Camden County Grand
Jury, and failed to present the clearly exculpatory evidence . .
. .”

Compl. At ¶ 18.
As recently stated by the Third Circuit, “the arrest of a

criminal defendant and the filing of charges are at the fore of
the prosecutorial function, and ‘a prosecutor is absolutely
immune when making [the decision to initiate a prosecution] even
where he acts without a good faith belief that any wrongdoing
has occurred.’”

Munchinksi v. Solomon, 2015 U.S. App. LEXIS

12478, at *8-9 (3d Cir. July 20, 2015)(quoting Kulwicki v.
Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992)).

In Small v. State

of New Jersey, the New Jersey Appellate Division adopted federal
court’s interpretation of absolute prosecutorial immunity,
stating “[a]bsolute immunity applies to prosecutorial activities
intimately associated with the judicial process, including
evaluating evidence, deciding to prosecute, and preparing for an
presenting evidence in the grand jury, even if it is alleged
they were conducted with malice.”

No. A-4113-13T4, 2015 N.J.

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Super. Unpub. LEXIS 530, at *15-16 (N.J. App. Div. Mar. 12,
2015).

Because Plaintiff’s allegations against Petrone clearly

fall within the category of her prosecutorial capacity in
deciding which evidence to present to a grand jury, Plaintiff’s
§ 1983 claims are also subject to dismissal based on absolute
prosecutorial immunity.
iii.

Monell

Count III of Plaintiff’s Complaint asserts claims for a
violation of §1983 against the “Count of Camden” for a “policy
and/or custom of the Camden County Prosecutor’s Office to fail
to exercise reasonable care in hiring its assistant prosecutors
[and for] inadequately supervis[ing] and train[ing] its
assistant prosecutors . . . .”

Compl. at ¶¶ 31-32.

To maintain

a claim brought pursuant to 42 U.S.C. § 1983 against a
municipality based on the acts of its individual employees, a
plaintiff must show that his constitutional injury was the
result of the implementation of a municipal policy or practice.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); Hill
v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006).
Official policy or practice is implemented by an individual’s
conduct when the individual acted according to a formal policy,
when he or she is a policymaker, or when such conduct is
ratified by a policymaker after it occurred.
245.

Hill, 455 F.3d at

However, where there is no underlying constitutional

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violation there can be no Monell claim.

See Kiriakidis v.

Borough of Vintondale, No. 14-2934, 2015 U.S. App. LEXIS 5940,
at *10 (3d Cir. 2015) (“Because we conclude that there was no
constitutional violation, Appellants cannot sustain a claim
against the Borough of Vintondale under Monell”); Strunk v.
Chester Cnty., No. 13-824, 2015 U.S. Dist. LEXIS 24523, *13-14
(E.D. Pa. 2015) (dismissing plaintiffs’ Monell claims against a
municipality where there was no constitutional violation).

For

the reasons already set forth above, there are no claims
remaining in this matter that are based on a constitutional
violation.

Therefore, Plaintiff’s Monell claim must be

dismissed.

Id.

2.

Tort Claims

Defendants argue that Plaintiff’s false imprisonment,
intentional infliction of emotional distress, and negligent
infliction of emotional distress claims must be dismissed
because Plaintiff failed to file a notice of tort claim as
required by the New Jersey Tort Claims Act (“NJTCA”). (Br. in
Supp. of Defs.’ Mot. to Dismiss 26.)

Under N.J.S.A. § 59:8-3,

“[n]o action shall be brought against a public entity or public
employee under [the NJTCA] unless the claim upon which it is
based shall have been presented in accordance with the procedure
set forth in this chapter.”

This procedure requires a notice of

tort claim be filed with the public entity within 90 days from

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the date on which it accrues, Velez v. City of Jersey City, 180
N.J. 284, 294-96 (2004), and only “[a]fter the expiration of six
months from the date notice of claim is received [may] the
claimant . . . file suit in an appropriate court of law.”
N.J.S.A. § 59:8-8. Because there is nothing in the complaint
setting forth any factual allegation regarding a notice of tort
claim, and because Plaintiff has not opposed the motion on this
ground, Plaintiff’s tort claims must be dismissed for failure to
file the requisite notice under the NJTCA.
In the alternative, Defendants correctly argue that
Plaintiff fails to plead the requisite elements of the emotional
distress claims asserted.
Dismiss 32-34.)

(Br. in Supp. of Defs.’ Mot. to

For example, to state a claim for intentional

infliction of emotional distress, Plaintiff must plead conduct
“so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 703 (N.J. 1998).
As Plaintiff has not pled emotional distress of such magnitude,
he cannot maintain his claim for intentional infliction of
emotional distress.

Furthermore, negligent infliction of

emotional distress requires either that the Defendants’ conduct
placed Plaintiff in reasonable fear of imminent personal injury
or that death or serious physical injury was caused. Jablonowska

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v. Suther, 195 N.J. 91, 104 (2008).

Because there are no

allegations that Petrone’s alleged exclusion of exculpatory
evidence caused the threat of serious physical injury, Plaintiff
cannot maintain his claim for negligent infliction of emotional
distress.
V.

Conclusion
For the reasons set forth above, the Court finds that, even

Defendants’ Motion to Dismiss must be granted.

An appropriate

Order will issue this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:

August 7, 2015

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