KOLLOCK-MANN et al v. CAMDEN COUNTY et al

Filing 47

OPINION. Signed by Judge Noel L. Hillman on 2/28/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JERNEE KOLLOCK-MANN and
DARYL MANN,
Plaintiffs,

Civ. No. 15-4708 (NLH/KMW)

OPINION

v.
INVESTIGATOR ROBIN MORANTE,
et al.,
Defendants.

APPEARANCES:
WEISBERG LAW
By: Matthew B. Weisberg, Esq.
7 South Morton Avenue
Morton, Pennsylvania 19070
Counsel for Plaintiffs
ROBERT LOUGY, ACTING ATTORNEY GENERAL OF NEW JERSEY
By: Akeel A. Qureshi, Deputy Attorney General
25 Market Street, P.O. Box 116
Trenton, New Jersey 08625
Counsel for Defendant

HILLMAN, District Judge
Plaintiff Jernee Kollock-Mann, former Vice Principal at
Triton Regional High School, alleges that Defendants,
investigators for the Camden County Prosecutor’s Office,
maliciously prosecuted her for, among other things, failing to

report the sexual abuse of at least one of her students. 1
Defendants move to dismiss the complaint pursuant to Fed. R.
Civ. P. 12(b)(6).

For the reasons set forth herein, the Motion

will be denied as moot in part, and denied in all other
respects.
I.
As alleged in the Third Amended Complaint, “[i]n or around
November 2011, teachers employed at Triton Regional High School
began having sexual relations with students.” (T.A.C. ¶ 8)

“In

or around 2012, one of the students involved in the misconduct
provided a written statement regarding the incidents in
question.

The student made the written statement in front of

witnesses[,] including Plaintiff.” (Id. ¶ 10)
Defendants Morante, Callahan 2 and DiNunzio of the Camden
County Prosecutor’s Office, as well as Triton Regional High
School’s principal, conducted “investigations” into the
incident(s). (T.A.C. ¶¶ 9, 17)
At some unspecified time, “Plaintiff voluntarily provided
information to Defendant Morante regarding the student’s

1

The Court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
2

Plaintiff Kollock-Mann “cross-moves to correct . . .
[Defendant] ‘Callahan’ to ‘Kellejan.’” (Opposition Brief, p. 10)
As it appears from Defendants’ papers that Kellejan is indeed
the correct spelling, the “cross-motion” (which was not filed or
docketed as a separate motion) will be granted.
2

statement” (T.A.C. ¶ 11).

However, the Third Amended Complaint

pleads that Plaintiff did not report the alleged abuse to DYFS
because “[i]n this matter, Plaintiff asked her
principal/supervisor whether she should contact DYFS and the
principal explicitly told Plaintiff not to contact DYFS.

The

principal was leading the school’s investigation.” (Id. ¶ 17)
New Jersey law imposes a broad duty to report child abuse:
“[a]ny person having reasonable cause to believe that a child
has been subjected to child abuse or acts of child abuse shall
report the same immediately to the Division of Child Protection
and Permanency 3 by telephone or otherwise.” N.J.S.A. 9:6-8.10;
see generally State v. Snell, 314 N.J. Super. 331, 335 (App.
Div. 1998)(“There is no mechanism built into the statute to
relieve persons who may be privy to confidential communications
from the duty to report child abuse to DYFS.

By mandating that

‘any person’ having reasonable grounds to suspect child abuse
report those suspicions to DYFS, the Legislature simply meant
any person, without limitation.”).

Failing to make the

statutorily-required report is a disorderly persons offense.
N.J.S.A. § 9:6-8.14. 4

3

The Division of Child Protection and Permanency was formerly
named the Division of Youth and Family Services, “DYFS.”
4

New Jersey law also protects people who report child abuse.
Specifically relevant to this suit, “[a] person who reports or
causes to report in good faith an allegation of child abuse or
3

On October 4, 2012, Defendant Morante “called Plaintiff’s
cell phone” and “demanded that Plaintiff go to the police
station.” (T.A.C. ¶ 21)

Plaintiff complied. (Id. ¶ 22)

After

arriving at the station, “Plaintiff was detained, fingerprinted,
and charged for Official Misconduct, Hindering Prosecution and
Failure to Report Child Abuse.” (Id. ¶ 24) 5
“On or about June 30, 2013, criminal charges were dismissed
against Plaintiff -- in exchange for her resignation as
assistant principal for the Black Horse Pike Regional School
District.

Plaintiff resigned under duress rather than risk

criminal charges and/or conviction.”

(T.A.C. ¶ 27)

neglect . . . and as a result thereof is discharged from
employment or in any manner discriminated against with respect
to compensation, hire, tenure or terms, conditions or privileges
of employment, may file a cause of action for appropriate relief
in the family part of the Chancery Division of the Superior
Court in the county in which the discharge or alleged
discrimination occurred or in the county of the person’s primary
residence. If the court finds that the person was discharged or
discriminated against as a result of the person’s reporting an
allegation of child abuse or neglect, the court may grant
reinstatement of employment with back pay or other legal or
equitable relief.” N.J.S.A. § 9:6-8.13.
5

“Official misconduct” is crime of either the second or third
degree, depending on the circumstances. N.J.S.A. § 2C:30-2.
“Hindering apprehension or prosecution” is a crime of either the
second, third, or fourth degree, or a disorderly persons
offense, depending on the circumstances. N.J.S.A. § 2C:29-3.
4

“DYFS later conducted an investigation into the matter and
also found Plaintiff had done nothing wrong whatsoever.” (T.A.C.
¶ 20)
The Third Amended Complaint asserts two counts against
Defendants in their individual capacities only: (1) § 1983
malicious prosecution, and (2) violation of the New Jersey Civil
Rights Act. 6

Defendants move to dismiss, asserting that they are

entitled to qualified immunity on the § 1983 claim.
II.
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the liberal federal pleading rules, it is not

6

The Third Amended Complaint also includes a loss of consortium
claim (Count III). However, in response to Defendants’ Motion
to Dismiss this count, “Plaintiffs concede voluntary dismissal
of their loss of consortium claim [pursuant to] FRCP 41.”
(Opposition Brief, p. 2) Accordingly, Count III of the Third
Amended Complaint will be dismissed; the Motion to Dismiss this
count will be denied as moot.
5

necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim. Bogosian v.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

However, “the

Federal Rules of Civil Procedure . . . do require that the
pleadings give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)(“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009)(“Iqbal . . . provides the final nail in the coffin for the
‘no set of facts’ standard that applied to federal complaints
before Twombly.”).
III.
Defendants argue that they are entitled to qualified
immunity because Kollock-Mann has not pled facts plausibly
supporting a conclusion that a constitutional violation
occurred.
6

“‘To prove malicious prosecution under § 1983, a plaintiff
must show that: (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in plaintiff’s
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.’” Kossler v.
Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)(quoting Estate of
Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)).
Defendants argue that the facts alleged do not establish
that Defendants lacked probable cause.

Indeed, Defendants

assert that the allegations affirmatively demonstrate that
Defendants had probable cause -- at least with respect to the
failure to report child abuse charge -- because Plaintiff pleads
that she did not report the alleged child abuse at the
instruction of the school principal.

Defendants further assert,

citing Wright v. City of Philadelphia, 409 F.3d 595 (3d Cir.
2005), that “if a suspect has been arrested and charged with
multiple offenses, the existence of probable cause for at least
one charge precludes the suspect from proceeding with his or her
§ 1983 malicious prosecution claim with respect to all charges.”
(Reply Brief, p. 4-5)

Thus, Defendants assert, the entirety of

7

Plaintiff’s § 1983 malicious prosecution claim should be
dismissed with prejudice.
Wright, however, is distinguishable, as explained by the
Third Circuit in Johnson v. Knorr, 477 F.3d 75 (3d Cir. 2007). 7
Wright applies to factual scenarios involving more discreet
involvement by law enforcement. See Johnson, 477 F.3d at 84 (“in
Wright the defendants had probable cause to arrest the plaintiff
in the first place, and their involvement apparently ended at
the time of the arrest.”).

In contrast, where, as alleged here

(and as in Johnson) the Defendants’ “involvement in both the
arrest and the initiation of criminal proceedings . . . [is
alleged to be 8] more extensive and lasted beyond the issuing of
an affidavit of probable cause for [plaintiff’s] arrest and the
arrest itself,” id., the existence of probable cause as to one
crime charged does not “insulate [Defendants] from liability”
for malicious prosecution as to the other charged crimes. Id.

7

Counsel’s failure to cite this controlling precedent is
concerning to the Court. Counsel’s citation to footnote 8 of
Kossler, 564 F.3d at 194 (Reply Brief, p. 5), which explicitly
discusses Johnson and Wright together, suggests that counsel was
aware, or should have been aware, of Johnson.
8

Notably, Johnson and Wright were both appeals from summary
judgment, whereas Defendants in this suit presently raise the
issue by way of a motion to dismiss. See generally Kossler v.
Crisanti, 564 F.3d 181, 194 (3d Cir. 2009) (“Wright and Johnson
both illustrate that the analysis of malicious prosecution
claims involving multiple charges is a fact-intensive one.”).
8

Specifically applied to this case, Johnson stands for the
proposition that Kollock-Mann’s § 1983 malicious prosecution
claim, based on the more serious charges of official misconduct
and hindering prosecution, does not fail as a matter of law at
this early stage of the case simply because the Third Amended
Complaint fails to plead facts plausibly supporting a conclusion
that Defendants lacked probable cause as to the less serious
charge of failing to report child abuse. See id. at 85 (“a
defendant initiating criminal proceedings on multiple charges is
not necessarily insulated in a malicious prosecution case merely
because the prosecution of one of the charges was justified.”);
see also Dempsey v. Bucknell Univ., 834 F.3d 457, 477 (3d Cir.
2016)(“although false arrest or imprisonment claims will
necessarily fail if probable cause existed for any one of the
crimes charged against the arrestee, ‘probable cause on one
charge does not foreclose a malicious prosecution cause of
action’ based on additional charges for which there was no
probable cause.

In the case of prosecution, unlike arrest,

unfounded charges ‘almost surely will place an additional burden
on the defendant,’ and thus we must consider probable cause as
to each of the charges.”)(quoting Johnson, 477 F.3d at 83;
emphasis in Dempsey).
In short, the Court holds that at this stage of the case,
Johnson, not Wright, applies to the facts of this case as
9

currently alleged in the Third Amended Complaint. 9

Accordingly,

Defendant’s motion to dismiss the malicious prosecution claim
based on Wright will be denied.
IV.
For the foregoing reasons, Defendants’ Motion to Dismiss
will be denied as moot as to the loss of consortium claim (Count
III), and denied in all other respects.
An appropriate order accompanies this opinion.

Dated: February 28, 2017
At Camden, New Jersey

s/ Noel L. Hillman______
NOEL L. HILLMAN, U.S.D.J.

9

To the extent discovery reveals a different factual scenario,
however, Defendants are free to argue at summary judgment that
Wright should apply to this case.
10