CREAIG v. STATE OF NEW JERSEY et al

Filing 16

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/23/2016. (TH, )

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

ANDRE CREAIG,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-5939 (JBS-KMW)

v.
STATE OF NEW JERSEY, et al.,

OPINION
Defendants.

APPEARANCES:
Andre Creaig, Plaintiff Pro Se
140 Evans Court
West Deptford, NJ 08086
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court are Plaintiff Andre Creaig’s
(“Plaintiff”), motions to amend his complaint, (Docket Entries
12 and 15), and motion for the appointment of counsel, (Docket
Entry 14). For the reasons set forth below, the motion to amend
shall be granted, and the amended complaint shall proceed in
part. The motion to appoint counsel is denied without prejudice.
II.

BACKGROUND
Plaintiff submitted a civil rights action against the State

of New Jersey and the Camden County Prosecutor’s Office (“CCPO”)
on August 3, 2015. (Complaint, Docket Entry 1). Plaintiff
alleged that on September 16, 2011, he was detained in Winslow

Township, Camden County on a receiving stolen property charge.
(Id. at 6). While he was detained, Officer Barrett of Winslow
Township and Investigator Nicolella from the CCPO questioned him
about a murder that occurred on September 13, 2011. (Id.). On
September 21, 2011, Plaintiff was arrested and charged with that
murder and four other offenses. On September 26, 2012, he was
indicted for murder, reckless manslaughter, aggravated
manslaughter, “person’s prohibited,” possession of a firearm,
and third-degree escape. (Id.). Plaintiff proceeded to trial,
where all but the escape charge were dismissed on July 2, 2015.
(Id.). He was sentenced on the escape charge on August 7, 2015
and committed to the custody of the New Jersey Department of
Corrections. (Id.).
By Opinion and Order dated November 9, 2015, the Court
dismissed the complaint for seeking relief from immune
defendants. (Nov. 9, 2015 Order, Docket Entry 9; see also 28
U.S.C. § 1915(e)(2)(B)(iii)). The Court held that Plaintiff’s
claims against the State of New Jersey and CCPO were barred by
the Eleventh Amendment to the United States Constitution. (Slip
Opinion, Docket Entry 8 at 7-9 (citing U.S. CONST. amend. XI)). As
such, those claims were dismissed with prejudice. (Id.). In a
footnote, the Court noted that although Plaintiff did not name
Investigator Nicolella and CCPO Deputy First Assistant Ottenberg
as defendants, they would also be entitled to Eleventh Amendment
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immunity under the set of facts set forth in the complaint. (Id.
at 9 n.2 (citing Woodyard v. Cnty. of Essex, 514 F. App'x 177,
182 (3d Cir. 2013))).
As it was not clear to the Court that amendment of the
complaint would be futile, see Grayson v. Mayview State Hosp.,
293 F.3d 103, 114 (3d Cir. 2002), the Court granted Plaintiff
leave to move to file an amended complaint within 30 days. On
November 24, 2015, Plaintiff asked the Court for an extension of
time to file his motion, (Docket Entry 10), which the Court
granted, (Docket Entry 11). Plaintiff filed a motion to amend
the complaint on December 4, 2015. (Motion to Amend, Docket
Entry 12). He filed another motion on December 17, 2015. (Docket
Entry 15).
Plaintiff’s motion indicates he seeks “to cure defects of
original claim with regard to relief dismissed with prejudice
against (State of New Jersey) having immunity from such claims,”
(id. ¶ 1), stating that “certain procedures and codes of
judicial conduct were in fact violated by Camden County
Municipalities[,]” (id. ¶ 2). He alleged that Officer Barrett
and Investigator Nicolella knew prior to Plaintiff’s arrest that
two other people were suspected in the murder. (Id.). According
to Plaintiff, a confidential informant approached them after
Plaintiff’s arrest and informed them that they had arrested the
“wrong Andre.” (Id.). He states none of this information was
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presented to the grand jury or during his trial. (Id.). As a
result, Plaintiff states he was forced to live in “some of the
most debased of living conditions in Camden County Correctional
Facility,” lost his job, and was defamed in the press before the
charges were dismissed. (Id. ¶ 3). He also claims to having been
defamed and suffers psychological scarring as a result of
Assistant County Prosecutor’s Peter Gallagher’s failure to
“correctly distribute[]” favorable evidence. (Id. ¶ 4). He
specifically alleges Prosecutor Gallagher coerced a witness and
withheld his statement from the jury. (Id.). On December 17,
2015, Plaintiff filed another motion to amend the complaint that
made the same allegations as the first motion. (Docket Entry
15).1 Plaintiff also submitted a motion for the appointment of
counsel. (Docket Entry 14).
III. STANDARD OF REVIEW
Rule 15(a) of the Federal Rules of Civil Procedure permits
a party to amend a pleading once as a matter of course twentyone (21) days after serving the pleading or twenty-one (21) days
“after a responsive pleading or service of a motion under Rule
12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. Pro.

1

As the proposed amended complaints are substantively identical,
the Court will refer to the motion docketed on December 4, 2015
as the amended complaint for ease of reference and as it
includes the exhibits on which Plaintiff relies. (Docket Entry
12).
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15(a)(1)(A)-(B). “In all other cases, a party may amend its
pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice
so requires.” Fed. R. Civ. Pro. 15(a)(2).
Leave to amend a pleading may be denied where the court
finds: (1) undue delay; (2) undue prejudice to the non-moving
party; (3) bad faith or dilatory motive; or (4) futility of
amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
“‘Futility’ means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.” Id. The Court
applies the same standard of legal sufficiency as applies under
Rule 12(b)(6).
IV. ANALYSIS
A. Motion to Amend
Plaintiff asks this Court to reinstate his complaint
against the State of New Jersey. The Court cannot do so. As it
noted in its Opinion dismissing the claims against the state, §
1983 “does not provide a federal forum for litigants who seek a
remedy against a State for alleged deprivations of civil
liberties. The Eleventh Amendment bars such suits unless the
State has waived its immunity, or unless Congress has exercised
its undoubted power under § 5 of the Fourteenth Amendment to
override that immunity.” Will v. Mich. Dep't of State Police,
491 U.S. 58, 66 (1989). There is no indication that New Jersey
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has consented to be sued; therefore, Plaintiff’s claims against
the state cannot proceed.
To the extent the proposed amended complaint could be read
as attempting to assert malicious prosecution and false arrest
claims against Investigator Nicolella and Prosecutor Gallagher,
the motion must be denied as to those claims as well. 28 U.S.C.
§ 1915(e)(2)(B)(ii)-(iii). Petitioner’s false arrest claims
against all defendants are barred by the statute of limitations.
“A complaint pursuant to § 1983 is ‘characterized as a personalinjury claim and thus is governed by the applicable state's
statute of limitations for personal-injury claims.’” Green v.
New Jersey, 625 F. App’x 73, 76 (3d Cir. 2015) (quoting Dique v.
N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)). In New
Jersey, the relevant statute of limitations is two years. Id.
The date that a cause of action under § 1983 accrues, however,
is a matter of federal law. See Wallace v. Kato, 549 U.S. 384,
388 (2007); Estate of Lagano v. Bergen Cty. Prosecutor's Office,
769 F.3d 850, 860 (3d Cir. 2014). “Claims for false arrest . . .
typically accrue on the date of the arrest . . . because, at
that point, the plaintiff has reason to know of the injury.”
Ostuni v. Wa Wa's Mart, 532 F. App'x 110, 112 (3d Cir. 2013)
(per curiam) (citing Montgomery v. De Simone, 159 F.3d 120, 126
(3d Cir. 1998)). Plaintiff was arrested on September 21, 2011,
(Exhibit C-2), the statute of limitations on a false arrest
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claim therefore expired on September 21, 2013. As it is apparent
from the face of the complaint that the false arrest claim is
barred by the statute of limitations, it is subject to
dismissal.2
Under the set of facts set forth in the proposed amended
complaint, Investigator Nicolella and Prosecutor Gallagher are
entitled to Eleventh Amendment immunity on Plaintiff’s malicious
prosecution claim. The Third Circuit has applied Eleventh
Amendment immunity to county prosecutor offices and their
employees when their actions “are clearly law enforcement
functions.” Woodyard v. Cnty. of Essex, 514 F. App'x 177, 182
(3d Cir. 2013); see also Naranjo v. City of Phila., 626 F. App'x
353, 355 (3d Cir. 2015) (“[P]rosecutors . . . are immune from
damages claims arising from their official acts.”); Beightler v.
Office of Essex Cty. Prosecutor, 342 F. App'x 829, 832 (3d Cir.
2009). In other words, the New Jersey county prosecutor’s office
is considered an arm of the State of New Jersey, which cannot be
sued in federal court due to the State’s Eleventh Amendment
immunity from a suit for money damages. Here, Plaintiff alleges
Investigator Nicolella and Prosecutor Gallagher are liable under

2

See Ostuni, 532 F. App'x at 111-12 (“Although the running of
the statute of limitations is ordinarily an affirmative defense,
where that defense is obvious from the face of the complaint and
no development of the record is necessary, a court may dismiss a
time-barred complaint sua sponte under § 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.”).
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§ 1983 for their actions during the investigation and trial.
These actions are clearly law enforcement functions. Woodyard,
514 F. App’x at 182; see also Hyatt v. Cnty. of Passaic, 340 F.
App'x 833, 837-38 (3d Cir. 2009); Davis v. Grusemeyer, 996 F.2d
617, 632 (3d Cir. 1993) (holding that absolute immunity extends
to a prosecutor's investigator who performs “investigative work
in connection with a criminal prosecution”), abrogated on other
grounds by Rolo v. City Investing Co. Liquidating Trust, 155
F.3d 644 (3d Cir. 1998). Therefore, Plaintiff's malicious
prosecution claims against them are barred by Eleventh Amendment
immunity.
To prevail on a § 1983 malicious prosecution claim,
Plaintiff must set forth facts indicating:
(1) the defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in the 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.
Woodyard, 514 F. App'x at 182 (citing McKenna v. City of Phila.,
582 F.3d 447, 461 (3d Cir. 2009). Accepting Plaintiff’s stated
facts as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
Plaintiff has sufficiently alleged a malicious prosecution claim
against Officer Barrett. This claim shall be permitted to
proceed at this time.

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Plaintiff also alleges Assistant Prosecutor Gallagher,
Investigator Nicolella, and Officer Barrett defamed him “due to
favorable evidence not being correctly distributed [throughout]
entire judicial process.” (Amended Complaint ¶ 4). He further
alleges Assistant Prosecutor Gallagher “manipulated judicial
proceedings and persons in order to get a conviction” by
coercing a witness and withholding a statement. (Id.). In
support of his allegations he attaches portions of Investigator
Nicolella’s investigation report. (Exhibit D).
Under New Jersey law, the elements of the cause of action
for defamation are: “(1) that defendants made a false and
defamatory statement concerning [plaintiff]; (2) that the
statement was communicated to another person (and not
privileged); and (3) that defendants acted negligently or with
actual malice.” G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011).
Plaintiff’s amended complaint fails to sufficiently plead a
claim of defamation as he does not identify the specific
allegedly defamatory statements and to whom they were published.
See Zoneraich v. Overlook Hosp., 514 A.2d 53, 63 (N.J. Super.
Ct. App. Div.)(“In the case of a complaint charging defamation,
plaintiff must plead facts sufficient to identify the defamatory
words, their utterer and the fact of their publication. A vague
conclusory allegation is not enough.”), certif. denied, 501 A.2d

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945 (N.J. 1986); see also F.D.I.C. v. Bathgate, 27 F.3d 850, 875
(3d Cir. 1994) (citing Zoneraich).
Plaintiff has sufficiently pled a claim of intentional
infliction of emotional distress against Officer Barrett. “[T]o
establish a claim for intentional infliction of emotional
distress, the plaintiff must establish intentional and
outrageous conduct by the defendant, proximate cause, and
distress that is severe.” Buckley v. Trenton Saving Fund Soc.,
544 A.2d 857, 863 (N.J. 1988). Giving Plaintiff the benefit of
all reasonable inferences in the amended complaint, Plaintiff
has met this standard.
As Plaintiff has sufficiently pled malicious prosecution
and intentional infliction of emotional distress claims against
Officer Barrett, amendment of the complaint is not frivolous.
The motion shall be granted, and the malicious prosecution and
intentional infliction of emotional distress claims against
Officer Barrett will proceed at this time.
B. Motion for the Appointment of Counsel
Plaintiff also moves for the appointment of counsel.
(Docket Entry 14). The motion is denied without prejudice to
Plaintiff’s right to seek appointment of counsel at a later
point in time.
Appointment of counsel is a privilege, not a statutory or
constitutional right. Brightwell v. Lehman, 637 F.3d 187, 192
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(3d Cir. 2011). Courts, in deciding whether to appoint pro bono
counsel, first must consider whether plaintiff's claim “has some
merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d
Cir. 1993) (quotation omitted). If the court finds that it does,
the court should consider the following factors:
(1) the plaintiff's ability to present his or her own
case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
such investigation;
(4) the amount a case is likely to turn on credibility
determinations;
(5) whether the case will require the testimony of expert
witnesses;
(6) whether the plaintiff can attain and afford counsel
on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155–56, 157 n.5). This list of factors is not
exhaustive, nor is a single factor determinative. Id. at 458. As
the Court has permitted Plaintiff’s amended complaint to proceed
in part, there is sufficient merit to continue analyzing the
Tabron factors.
Plaintiff states the appointment of counsel is warranted
because his “judicial knowledge will take [him] but so far and
has gotten [him] but so far with various misinterpretations
[occurring] that could have been avoided had [he] previously
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acquired counsel.” (Motion for Counsel ¶ 3). He also argued the
fact that he was incarcerated prevented him from obtaining an
attorney on his own (Id. ¶ 4). Plaintiff has pled sufficient
facts to withstand summary dismissal, indicating he is able to
present the issues to the Court. Additionally, he has been
released from custody, (Docket Entry 6), which will enable him
to seek out the services of an attorney on his own and to
otherwise fully participate in the litigation and investigation.
The documents attached to Plaintiff’s complaint indicate that
the case will not be solely a credibility contest, nor does it
appear at this time that the case is very complex and that
expert testimony will be necessary. Therefore, the Tabron
factors do not weigh in favor of the appointment of counsel at
this time. The motion is denied without prejudice.
V.

CONCLUSION
For the reasons stated above, Plaintiff’s motion to amend

his complaint is granted. The malicious prosecution claim is
dismissed as to the State of New Jersey, the Camden County
Prosecutor’s Office, Investigator Nicolella, and Assistant
County Prosecutor Gallagher. Plaintiff’s malicious prosecution
and intentional infliction of emotional distress claims against
Officer Barrett may proceed at this time. Plaintiff’s motion for
the appointment of counsel is denied without prejudice.

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An appropriate order follows.

March 23, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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