KAZAR v. CITY OF CAMDEN et al

Filing 47

OPINION. Signed by Judge Noel L. Hillman on 2/18/2016. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MILTON KAZAR,
Plaintiffs,

Civil No. 15-1527 (NLH)

v.
CITY OF CAMDEN, et al.,

OPINION

Defendants.

APPEARANCES:
CONRAD J. BENEDETTO
DANIEL J. MCCRACKEN
1814 East Route 70, Suite 350
Cherry Hill, NJ 08003
Attorneys for Plaintiff Milton Kazar
SURINDER K. AGGARWAL
1 University Plaza, Suite 617
Hackensack, NJ 07601
Attorney for Plaintiff Milton Kazar
THOMAS G. MASCIOCCHI
KEAVENEY LEGAL GROUP, LLC.
1101 N. Kings Highway, Suite G100
Cherry Hill, NJ 08034
Attorney for Plaintiff Milton Kazar
TIMOTHY J. GALANAUGH
CAMDEN CITY ATTORNEY
520 Market Street, Room 420
Camden, NJ 08101
Attorneys for Defendants City of Camden, William Benjamin
AKEEL AHMAD QURESHI, Deputy Attorney General
ATTORNEY GENERAL OF STATE OF NEW JERSEY
P.O. BOX 116
Trenton, NJ 08625-0116

Attorneys for State of New Jersey, Camden County
Prosecutor’s Office, Ira Slovin, Gregory Smith, James
Bruno, Steven Settles
HILLMAN, District Judge:
Presently before the Court is a motion filed by certain
Defendants to dismiss the claims in the Complaint against them.
In response to the motion to dismiss, Plaintiff Milton Kazar
states that he desires to withdraw all but two claims presented
in the Complaint.

The Court will dismiss the claims Kazar seeks

to voluntarily withdraw and, for the reasons expressed below and
pursuant to Rule 78, will grant the motion to dismiss the
remaining claims asserted in the Complaint against the
Defendants who filed the motion.1
I.

BACKGROUND

On February 27, 2015, Milton Kazar filed a Complaint
claiming violation of his rights under 42 U.S.C. § 1983 and New
Jersey law against the City of Camden, Camden Police Officer
William Benjamin, the State of New Jersey, the Camden County
Prosecutor’s Office, Assistant Camden County Prosecutor Ira
Slovin, and three officials in the Camden County Prosecutor’s

Defendants City of Camden and Camden Police Officer William
Benjamin filed an Answer. (ECF No. 23.)
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Office, namely, Section Chief Gregory Smith and Investigators
James Bruno and Steven Settles.2

Kazar asserts that on January

18, 2008, based on a warrant “issued” by Defendant Investigator
Bruno and approved by Defendant Smith, unidentified official(s)
arrested him for the murder of Luis Rolon on January 16, 2008.
He claims that in an interrogation tape-recorded on January 18,
2008, he denied all involvement in the murder and signed
documents with his right hand.

He asserts that Defendant Bruno

saw that Kazar was right handed and knew that an eyewitness had
reported that the shooter of Rolon was left handed.

Kazar

alleges that, although no reliable or credible evidence existed
suggesting that Kazar was involved with the murder of Rolon and
“the Defendants knew that a potential suspect in the murder of
Luis Rolon was the step-son of Defendant William Benjamin,” (ECF
No. 1 at 5), the Defendants arrested and charged him with
Rolon’s murder.

Specifically, Kazar asserts that “Defendant

Benjamin’s step-son was stopped in the area of Mr. Rolon’s
murder within hours of the act driving a vehicle [that] was seen

The Complaint also asserted claims against Camden County but on
October 26, 2015, Kazar and Camden County filed a stipulation
dismissing the claims against Camden County without prejudice.
(ECF No. 38.)
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near the victim’s home.”

Id.

Kazar alleges that he was

detained for four days before being released.

He alleges that

“the Defendants attempted to fabricate, alter, modify and/or
create evidence” against him; “the Defendants ignored,
disregarded and/or failed to give due and proper weight,
evaluation, development, exploration, and/or consideration to
the lack of evidence” against Kazar; and “the Defendants ignored
all pleas, as well as Notice of Alibi and other communications
made by the Plaintiff’s defense counsel to immediately dismiss
all charges due to a lack of credible evidence and existence of
an alibi and evidence to the contrary of his guilt.”
6.

Id. at 5-

Kazar alleges that “[a]fter a deliberate and intended

protracted period of prosecution the State conceded that no
reliable and/or credible evidence existed as against the
Plaintiff and dismissed all charges.”

Id. at 6.

Kazar claims in the Complaint that “the Defendants”
arrested and imprisoned him for four days in violation of 42
U.S.C. § 1983 (Counts One and Two), conspired to violate his
constitutional rights in violation of § 1983 (Count Three),
negligently failed to supervise, train and prevent the violation
of his rights (Count Four), maliciously prosecuted him (Count
Five), maliciously abused legal process (Count Six), falsely
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arrested and imprisoned him (Count Seven), negligently performed
duties to Kazar (Count Eight), and violated his rights under the
New Jersey Civil Rights Act (Count Nine).

(ECF No. 1 at 6-15.)

Presently before the Court is a motion filed by the State
of New Jersey, the Camden County Prosecutor’s Office, Ira
Slovin, Gregory Smith, James Bruno, Steven Settles
(collectively, the “State Defendants”) to dismiss all claims in
the Complaint against those Defendants.

The State Defendants

argue that the Eleventh Amendment bars claims against the State
of New Jersey, the Prosecutor’s Office, Assistant Prosecutor
Slovin and the employees of the Prosecutor’s Office (Smith,
Bruno and Settles); certain Defendants are not “persons” under
42 U.S.C. § 1983 and the New Jersey Civil Rights Act; Assistant
Prosecutor Slovin is absolutely immune from the claims asserted
in the Complaint; Defendants Slovin, Smith, Bruno and Settles
are protected by qualified immunity; the Prosecutor’s Office and
Smith cannot be found liable on the basis of respondeat superior
and the Complaint does not assert facts showing that these
defendants were personally involved in violating Kazar’s rights;
several claims are barred by the statute of limitations; the
Court lacks jurisdiction over claims under the New Jersey Tort
Claims Act; and the Complaint fails to plead facts showing that
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the State Defendants maliciously prosecuted Kazar, maliciously
abused legal process, or conspired to violate Kazar’s rights.
In response, Kazar states that he wishes to voluntarily
withdraw the following claims and Defendants:

all claims under

federal and state law against the State of New Jersey; all
official capacity claims against the individually named
Defendants; claims for false arrest, false imprisonment and
conspiracy to violate Kazar’s rights under state and federal
law; “his Monell claim contained in Count 4 of the Complaint;”
and the “Negligence claim for failure to train and supervise
contained in Count 8.”

(ECF No. 34 at 6, n.1.)

Kazar opposes

dismissal of “his individual capacity claims against the
individual Defendants with his claims for Malicious Prosecution
and Malicious Abuse of Process under both Federal and State
law.”

Id.

In reply, the State Defendants reiterate that the Complaint
does not state a malicious prosecution claim or a malicious
abuse of process claim against any of them.
II.

DISCUSSION

Based on Kazar’s statement in his brief that he desires to
voluntarily withdraw certain claims and defendants, the Court
will dismiss without prejudice all claims against the State of
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New Jersey and the Camden County Prosecutor’s Office, the
official capacity claims against the individual Defendants, the
false arrest, false imprisonment, and conspiracy claims against
all Defendants, and the claims for failure to train and
supervise.

The Court will consider whether the Complaint states

a malicious prosecution or malicious abuse of process claim
against any of the individual State Defendants.
A.

Standard of Review
To survive dismissal for failure to state a claim upon

which relief may be granted under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’ A
claim has facial plausibility 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)(citations omitted).
Although for the purposes of Rule 12(b)(6) a court must take
factual allegations in the complaint as true, a court is “not
bound to accept as true a legal conclusion couched as a factual
allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)(internal quotation marks omitted).

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B.

Malicious Prosecution
To recover under 42 U.S.C. § 1983 against an individual, a

plaintiff must show:

(1) a person deprived him or caused him to

be deprived of a right secured by the Constitution or laws of
the United States, and (2) the deprivation was done under color
of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
The Fourth Amendment safeguards “[t]he right of the people
to be secure in their persons . . . against unreasonable . . .
seizures.”

U.S. Const. amend. IV.

To prevail on a Fourth

Amendment malicious prosecution claim under § 1983, a plaintiff
must establish that:
(1) the defendant initiated a criminal proceeding; (2)
the criminal proceeding ended in [the plaintiff's]
favor; (3) the defendant initiated the proceeding
without probable cause; (4) the defendant 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.
Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014) (quoting
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)).
Defendants Slovin, Smith, Bruno and Settles argue that the
malicious prosecution claim should be dismissed for the
following reasons: the murder charge did not terminate in
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Kazar’s favor because it was dismissed pursuant to a plea
agreement3; the indictment establishes probable cause; and the
Complaint does not plead facts showing that each Defendant is
liable for maliciously prosecuting Kazar.

Kazar contends that

he has pleaded facts plausibly suggesting that the prosecution
was initiated without probable cause, that the prosecution
terminated in his favor because the prosecutor dismissed the
case due to lack of evidence, that Slovin is not absolutely
immune from fabricating evidence and coercing and intimidating
witnesses, and that his rights to avoid malicious prosecution
and abuse of process were clearly established at the time his
rights were violated.

Attached to the brief filed by the State Defendants is a
document dated February 25, 2013, and entitled “New Jersey
Judiciary Plea Form” which indicates that Milton Kazar seeks to
plead guilty to the offense terroristic threats in count three
of Camden County Indictment #583-02-09 and that the prosecutor
has agreed to recommend dismissal of Indictments 472-02-09 and
160-01-13. (ECF No. 27-3 at 44-48.) This Court cannot consider
this document or the other documents attached to the State
Defendants’ brief and reply in deciding the motion to dismiss.
See Fed. R. Civ. P. 12(d); McTernan v. City of York, PA, 577
F.3d 521, 526 (3d Cir. 2009) (“We have stated that, in deciding
a motion to dismiss . . , [i]n addition to the complaint itself,
the court can review documents attached to the complaint and
matters of public record, and a court may take judicial notice
of a prior judicial opinion.”) (citation omitted).
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The problem with Kazar’s pleading is that he does not
assert facts showing, as to each Defendant, that “the defendant
initiated the proceeding without probable cause” and “the
defendant acted maliciously or for a purpose other than bringing
the plaintiff to justice.”
omitted).

Halsey, 750 F.3d at 297 (citation

Other than certain isolated and limited facts

asserted with regard to Bruno and Smith,4 Plaintiff bundles all

As noted, Plaintiff alleges that Bruno “issued” (presumably
meaning “obtained”) a warrant, which Smith approved, and then
after Plaintiff’s arrest Bruno noticed that he was right-handed
at the time he knew a witness had described the suspect as lefthanded. How this information relates to whatever process was
used to obtain the warrant, the facts alleged to obtain the
warrant, information about the other witness, or other
information developed during the investigation is undisclosed.
Plaintiff makes no allegation whatsoever about this righthanded/left-handed observation against Smith or any defendant
other that Bruno. Plaintiff does relate that Bruno documented
it in his report, hardly an act of concealment or malice. Even
if Plaintiff’s right-handedness was exculpatory, that does not
necessarily mean that this one fact was strong enough to
undermine a finding of probable cause when weighed against the
evidence that inculpated Plaintiff. Not every inconsistent or
exculpatory fact undermines probable cause: the question is
whether the “exculpatory facts, when weighed against the
inculpatory facts, are [ ] strong enough to undermine a finding
of probable cause.” Wilson v. Russo, 212 F.3d 781, 791-92 (3d
Cir. 2000). For example, the Third Circuit held in Wilson v.
Russo that where one victim identified Wilson as the robber
three days after the incident, the facts that Wilson was four to
seven inches shorter than the victim originally described and
that one of the two victim-witnesses failed to identify Wilson
when shown a photo array, did not undermine the existence of
probable cause. Id. at 791-92; see also Vega v. Ripley, 571 F.
App’x 96, 100 (3d Cir. 2014)(affirming order granting summary
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4

other factual allegations collectively as all “Defendants.”
Iqbal teaches that a plaintiff who alleges all the same basic
facts against all the defendants is unlikely to assert a
plausible claim.

While it is possible that each of the

individual Defendants in this case initiated the criminal
prosecution against Kazar maliciously and without probable cause
as claimed, such a claim is not plausible on the limited facts
pled.

A plausible claim alleges facts that are specific to the

role played by each individual.

See Iqbal, 556 U.S. at 677

(“[E]ach Government official . . . is only liable for his or her
own misconduct,") and id. at 676 ("a plaintiff must plead that
each Government-official defendant, through the official's own

judgment because, “even if the evidence that the bullet casings
found at the scene did not match the caliber of weapons owned by
Vega was exculpatory . . , it would not have been strong enough
to undermine a finding of probable cause when weighed against
the evidence that inculpated him.”) (citation and internal
quotation marks omitted). The only other potentially meaningful
allegation is that the “Defendants’” knew defendant Benjamin’s
stepson was also a suspect. If this is meant to infer that the
defendants’ acted with malice in that they arrested Plaintiff to
shield Benjamin’s stepson, such an allegation should not have to
be inferred but should contain sufficient factual allegations
against each defendant to make the claim both clear and
plausible as to each. As for defendants Slovin and Settles, no
specific allegations at all are made regarding the
investigation, arrest, or prosecution of Plaintiff. A reader is
left to guess as to their respective roles and alleged conduct.
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individual actions, has violated the Constitution.").

Because

Kazar does not assert facts showing that each (or any)
Defendant, through the person’s own actions, initiated the
murder proceeding without probable cause and acted maliciously
or for a purpose other than bringing him to justice, his
Complaint does not state a malicious prosecution claim.5
(2) Malicious Abuse of Process
The State Defendants argue that the Complaint does not set
forth a malicious abuse of process claim because it does not
allege facts showing that any of them had an ulterior motive for
delaying the dismissal of the charges against Kazar.
27-3 at 39.)

(ECF No.

Relying on Rose v. Bartle, 871 F.2d 331, 350 (3d

Cir. 1989), Kazar maintains that he has sufficiently pleaded a
malicious abuse of process claim.
As Kazar contends, in Rose v. Bartle the Third Circuit
noted that “a section 1983 claim for malicious abuse of process
lies where ‘prosecution is initiated legitimately and thereafter

The Court notes, however, that the facts alleged in the
Complaint suggest that the prosecution terminated in Kazar’s
favor, as he asserts that the prosecutor dismissed the charges
on the basis of insufficient evidence. The facts alleged in the
Complaint also suggest that Kazar suffered a deprivation of
liberty, as he asserts that he was incarcerated for four days on
the murder charge.
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is used for a purpose other than that intended by the law.’”
Rose, 871 F.2d at 350 (quoting Jennings v. Shuman, 567 F.2d
1213, 1217 (3d Cir. 1977)).

The gravamen of an abuse of process

tort “is not the wrongfulness of the prosecution, but some
extortionate perversion of lawfully initiated process to
illegitimate ends.

Cognizable injury for abuse of process is

limited to the harm caused by the misuse of process, and does
not include harm (such as conviction and confinement) resulting
from that process’s being carried through to its lawful
conclusion.”

Heck v. Humphrey, 512 U.S. 477, 486 n.5 (1994).

To establish an abuse of process claim “there must be some proof
of a definite act or threat not authorized by the process, or
aimed at an objective not legitimate in the use of [the]
process.”

Ference v. Twp. of Hamilton, 538 F.Supp.2d 785, 798

(D.N.J. 2008) (citations and internal quotation marks omitted).
Again, the facts in Kazar’s Complaint do not indicate what
each individual Defendant did to pervert Kazar’s criminal
prosecution toward illegitimate ends.

Accordingly, the

Complaint does not state an abuse of process claim against any
Defendant under the Iqbal pleading standard, and the Court will

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grant the motion to dismiss the abuse of process claims.6

See

Moore v. United States, 213 F.3d 705, 712-13 (D.C. Cir. 2000);
Coles v. Carlini, Civ. No. 10-6132 (JBS), 2015 WL 5771134 at
n.12 (D.N.J. Sept. 30, 2015); Ference, 538 F.Supp.2d at 798.
III.

CONCLUSION

For the reasons set forth in this Opinion, this Court will
grant the motion to dismiss without prejudice to the filing of
an amended complaint that is complete on its face and replaces
the original Complaint.

An appropriate Order accompanies this

Opinion.
/s/Noel. L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Dated: February 18, 2016

In any event, the abuse of process claims may be time barred.
In Rose, the Third Circuit held that “the plaintiffs’ [section
1983] claims for abuse of process accrued on the dates of arrest
because the plaintiffs would have had reason to know on those
dates of the injuries which the tort encompasses.” Id. at 351.
The statute of limitations on Kazar’s § 1983 claims is governed
by New Jersey’s two-year limitations period for personal injury.
See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Estate of Lagano
v. Bergen County Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir.
2014); Dique v. N.J. State Police, 603 F. 3d 181, 185 (3d Cir.
2010); Cito v. Bridgewater Township Police Dept., 892 F.2d 23,
25 (3d Cir. 1989). If Kazar’s § 1983 abuse of process claims
accrued on the date of his arrest (the Court is not at this time
deciding that they did), then the claims would be time barred
because the statute of limitations expired on January 18, 2010,
almost five years before he filed his Complaint on February 27,
2015.
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