WAYNE POLICE SERGEANT JOSEPH DUNCAN v. OFFICE OF THE PASSAIC COUNTY PROSECUTOR et al
Filing
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OPINION fld. Signed by Judge Esther Salas on 3/30/12. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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WAYNE POLICE SERGEANT,
JOSEPH DUNCAN,
POLICE OFFICER JASON GOLLER,
WAYNE POLICE DETECTIVE
SERGEANT ROBERT MARTELLO,
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Plaintiffs,
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v.
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OFFICE OF THE PASSAIC
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COUNTY PROSECUTOR AND
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JAMES AVIGLIANO Prosecutor,
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in his official capacity, and JOHN DOES, :
1 through 10,
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Defendants.
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Civil Action 05-1931 (ES) (CLW)
OPINION
SALAS, DISTRICT JUDGE
Now pending before this Court is the Office of the Passaic County Prosecutor’s
(“OPCP”) and, in his official capacity, Prosecutor James Avigliano’s (“the Prosecutor”) joint
motion for summary judgment. (Dckt. No. 91). Plaintiffs Joseph Duncan, Jason Goller, and
Robert Martello jointly oppose the motion.1 (Dckt. No. 93). The Court has considered the
submissions made in support of and in opposition to the instant motion. No oral argument was
heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendant’s motion for summary
judgment is GRANTED.
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Each plaintiff filed a separate action. (05-1931(Duncan); 05-2645 (Goller); and 05-2770 (Martello)). However, by
a “Consent Order” dated August 5, 2005, the parties stipulated to consolidate the actions. (Dckt. No. 8). All three
Complaints bring the same claims.
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I.
Factual Background2
From the beginning, the Court notes that this action undisputedly arises out of a request
by the Prosecutor that Plaintiffs provide urine specimens to the Passaic County Police Academy.
Plaintiffs assert that they were harmed by this request and events that flowed therefrom. The
Court also notes that in a parallel proceeding arising out of the facts and events at issue in this
Court, the New Jersey Appellate Division held that under New Jersey law, a county prosecutor
“has the authority to initiate and issue drug testing orders to police officers “based upon
reasonable suspicion . . . when as here, the chief law enforcement officer in the affected
jurisdiction consents to the County Prosecutor initiating the order.” Passaic County PBA Local
197 v. Office of Passaic County Prosecutor, 895 A.2d 1187, 1192 (App. Div. 2006) (holding that
in certain situations county prosecutors in New Jersey have the power to initiate and issue drug
testing orders to law enforcement officers within the county based upon reasonable suspicion).
In the instant action, Plaintiffs assert the following claims against the OPCP and the
Prosecutor: (1) violations of 42 U.S.C. § 1983; (2) violations of procedural and substantive due
process, as well as equal protection, under both the Federal and New Jersey Constitution; (3)
intentional infliction of emotional distress; (4) negligence; and (5) civil conspiracy.
In 2002, the OPCP formed a Joint Narcotics Task Force (“JNTF”) made up of several
Passaic County Sheriff's Officers, members of various municipal police departments and
investigators as well as personnel from OPCP. (Def.’s 56.1 Statement, ¶ 1). In 2004, the JNTF
began conducting a narcotics, prescription drug, and steroid distribution investigation in local
gyms (“the investigation”). (Id. ¶ 2). During the investigation, Robert Post and Charles Post
(collectively “the Post brothers”) became suspects. (Id. ¶ 3). Wire intercept orders were secured
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The following facts are undisputed unless otherwise noted.
2
as to the Post Brothers and by August 2004 numerous drug related conversations were recorded
identifying numerous other gym member suspects, including several Passaic County Sheriffs
Officers, municipal police and investigators. (Id. ¶ 4).
Communications intercepted during an authorized electronic wire interception
(“wiretap”) in the course of the investigation indicated that law enforcement agents had
compromised the investigation by tipping the targets off as to the investigation. (Id. ¶ 6). During
the course of the investigation, it became apparent that the wiretap ordered by the JNTF had been
compromised by a law enforcement officer, whose identity was not known. (Id. ¶ 7). The
unidentified officer(s) divulged secret information to some of the targets of the investigation. (Id.
¶ 8). In addition, at least one law enforcement officer had been arrested as a conspirator in the
underlying narcotics investigation. (Id. ¶ 9). During the course of the investigation, it became
clear that several members of law enforcement may have been involved in the conspiracy, both
as users of illegal drugs and as possible distributors of illegal drugs. (Id. ¶ 12). On August 8,
2004, several non-law enforcement personnel were arrested and possessed materials which
demonstrate a possible relationship with law enforcement personnel. (Id. ¶13).
The investigation continued and it was determined that during the investigation and after
the arrests of a number of individuals as a result of the sweep, certain members of the Wayne
Police Department, who were not involved in the JNTF investigations, and had no role in the
investigations, attempted to solicit information and details concerning the investigation from law
enforcement personnel involved in the investigation. (Id. ¶ 14). In fact, Plaintiffs admit that they
spoke to officers of the JNTF regarding the investigation. (Pl. Response to Pl. 56.1 Statement ¶¶
16, 18, & 18; See also Def.’s 56.1 Statement, ¶¶ 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 ). In
particular, on August 9, 2004, Plaintiff Duncan then contacted JNTF Sergeant Celantano and
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inquired as to the targets of the JNTF investigation. (Pl. Response to Pl. 56.1 Statement ¶ 32).
Plaintiff Duncan advised Sgt. Celentano that he knew the Post Brothers from the gym. (Id. ¶ 33).
Plaintiff Duncan mentioned that there were rumors that Wayne police officers were being
targeted in the investigation being conducted by the JNTF. (Id. ¶ 34). Plaintiff Duncan also
asked Sergeant Celantano about the JNTF investigation and whether the investigation targeted a
certain Wayne resident, Leonard Corsi. (Id. ¶35).
At the time of the alleged incidents
surrounding this investigation, Plaintiffs were employed by the Wayne Police Department.
(Def.’s 56.1 Statement, ¶¶ 19, 20, & 21).
Additionally, after the arrest of the Post brothers on Monday, August 19, 2010, Plaintiff
Goller, who also had no connection with the JNTF investigation and who worked under the
control of Plaintiff Duncan on his shift, made a personal on-duty visit to Detective Zaccone's
home and inquired about the Post brothers' arrest. (Id. ¶ 37).
The Prosecutor consulted with his staff and with Chief Raymond Riga about whether
drug testing would be appropriate for members of the Wayne Police Department if it were
determined that reasonable suspicion existed as to their use of illegal drugs. (Id. ¶ 39). Based on
the discussion at the meeting, Chief Riga and the Prosecutor made the decision that reasonable
suspicion existed to drug test certain officers, including Plaintiffs. (Id. ¶ 40, 42, 43, 44)..
II.
Discussion
Plaintiffs assert the following claims against the OPCP and the Prosecutor in his official
capacity: (1) violations of 42 U.S.C. § 1983; (2) violation of procedural and substantive due
process, as well as equal protection, under both the Federal and New Jersey Constitution; (3)
intentional infliction of emotional distress; (4) negligence; and (5) civil conspiracy. The Court
will address first the Federal claims and then move to the state law claims.
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A. Federal Claims
The Eleventh Amendment protects non-consenting states from suits brought in federal
court by private citizens seeking money damages. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The protection extends to
state agencies as long as the state is the “real party in interest.” Fitchik v. N.J. Transit Rail
Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989). Applying the Fitchik analysis, the Third
Circuit held that county prosecutor’s offices are agents of the state when performing classic law
enforcement and investigative functions. See Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.
1996). And, Courts within the Third Circuit have consistently held that the Eleventh
Amendment precludes federal suits against New Jersey county prosecutors, as well as their
offices, arising out of their law enforcement functions on the basis that the real party in interest
in these suits is the State of New Jersey. See Beightler v. Office of Essex County Prosecutor, 342
Fed. App’x. 829 (3d Cir. 2009) (defendant entitled to sovereign immunity for action stemming
out of decision to prosecute plaintiff for unlawful possession of a firearm); Hyatt v. County of
Passaic, No. 08–3206, 2009 WL 2055136 (3d Cir. July 16, 2009) (county prosecutor's office
entitled to sovereign immunity on charges of malicious prosecution, false arrest, and false
imprisonment claims because procedures, policy, and training implicated in incident were related
to the prosecutorial function); Nugent v. County of Hunterdon, No. 09–2710, 2010 U.S. Dist.
LEXIS 47654, 2010 WL 1949359 (D.N.J. May 14, 2010) (noting that while local government
units can be sued under § 1983, “under New Jersey law, a county prosecutor's office does not
have a separate legal existence ... [and][t]herefore, New Jersey courts have consistently held that
a county prosecutor's office is not a suable entity under § 1983”) (citations omitted); Logan v.
New Jersey, No. 09–1528, 2010 U.S. Dist. LEXIS 13479, 2010 WL 572127 (D.N.J. Feb. 17,
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2010) (JAP) (claims arising from prosecutor's office's decision to unsuccessfully pursue plaintiffs
on charges of resisting arrest and inciting a riot); Paez v. Lynch, No. 07–5036, 2009 U.S. Dist.
LEXIS 119342, 2009 WL 5171858 (D.N.J. Dec. 23, 2009) (granting summary judgment for
defendant on claims of malicious prosecution under federal and state law); Watkins v. Attorney
General of New Jersey, No. 06–1391, 2006 U.S. Dist. LEXIS 73075, 2006 WL 2864631 (D.N.J.
Oct. 4, 2006) (county prosecutor's office entitled to sovereign immunity; also holding that it is
not a “person” within the meaning of Section 1983); Banda v. Burlington County, No. 03–2045,
2006 U.S. Dist. LEXIS 68791, 2006 WL 2739718 (D.N.J. Sept. 26, 2006) (“The Burlington
County Prosecutor's Office and the individual prosecutors, in their official capacities only, are
entitled to Eleventh Amendment immunity from this suit”); Davis v. Township of Lakewood, No.
03–1025, 2005 U.S. Dist. LEXIS 16420, 2005 WL 1863665 (D.N.J. Aug. 4, 2005) (holding
county prosecutor's office to be an alter-ego of the State for Eleventh Amendment purposes).
Here, considering the undisputed facts of this case in their totality, the Court finds that
the allegations regarding the Prosecutor’s request for Plaintiffs to submit a urine sample involved
the performance of traditional law enforcement and investigative functions. Specifically, the
OPCP was involved in a drug investigation. (Def.’s 56.1 Statement, ¶ 1, 2). Over the course of
that investigation the OPCP and the Prosecutor uncovered information through recordings and
arrests leading them to believe that law enforcement officers were involved in the activities
under investigation. (Id. ¶¶ 4, 6, 7, 9, 12, 13 In addition, during the investigation and after the
arrest of at least one law enforcement officer (id. ¶ 9), members of the Wayne Police
Department—who were not members of the JNTF—contacted members of the JNTF to solicit
information regarding the investigation, including the names of potential suspects. Pl. Response
to Pl. 56.1 Statement ¶¶ 16, 18, & 18; See also Def.’s 56.1 Statement, ¶¶ 20, 21, 22, 23, 24, 25,
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26, 27, 28, 29, 30 ). With this information in hand, exercising the power to request urine samples
from police officers for analysis was a logical next step in the investigative process. (Id. ¶ 40,
42, 43, 44).
In fact, Plaintiffs allege no other conduct by either the OPCP or the Prosecutor in his
official capacity that the Court can construe as non-prosecutorial or non-investigatory in nature.
Because the Court finds that the allegations of wrongdoing committed by the OPCP and the
Prosecutor in his official capacity occurred during their exercise of traditional law enforcement
and investigative functions, any judgment rendered in favor of Plaintiffs and against the OPCP
and or the Prosecutor in his official capacity would be paid out of the state treasury. In that
regard, Plaintiff's suit as it relates to either the OPCP or the Prosecutor in his official capacity is a
suit against an arm of the State of New Jersey and, therefore, barred by the Eleventh
Amendment. See Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996).
Further, to be clear, the Eleventh Amendment bars suit against a State official in his or
her official capacity, because it “is not a suit against the official but rather is a suit against the
official’s office. As such, it is no different from a suit against the State itself.” Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989). Here, the Prosecutor is named exclusively in his
official capacity. Therefore, Plaintiffs’ suit against the Prosecutor in his official capacity is
barred by the Eleventh Amendment.3 See Beightler v. Office of Essex County Prosecutor, 342
Fed. App’x. 829 (3d Cir. 2009)
3
Although not raised by the parties, the Court is cognizant of the the Third Circuit’s instruction that district courts
should examine the complaint and the “course of proceedings” to determine whether a plaintiff has sued defendants
in their individual capacities, official capacities, or both. Moore v. Cuttre, 2010 U.S. Dist. LEXIS 62390, at * 6–7
(D.N.J. June 23, 2010) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991)). That
said, the only parties who have moved for summary judgment are the OPCP and the Prosecutor in his official
capacity and, therefore, the issue of “individual capacity” is not squarely before this Court. That said, based on the
Court’s own review of the record, there are no indicia of intent to sue the Prosecutor in his individual capacity in the
Complaint, the Answer, or any other proceedings in this matter.
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Accordingly, because the Court holds that the OPCP and the Prosecutor enjoy Eleventh
Amendment immunity from Federal claims, said claims are dismissed with prejudice.
B. State Law Claims
In addition to their Federal claims, Plaintiffs allege state law claims for (1) violations of
the New Jersey State Constitution, (2) intentional infliction of emotional distress; (3) negligence;
and (4) civil conspiracy. Defendants seek dismissal of the claims, arguing that sovereign
immunity bars state law claims against state entities. The Court agrees.
The Court finds that Plaintiffs’ state law claims against the Defendants acting in their
official capacities are barred by the Eleventh Amendment. The Eleventh Amendment provides
that a court may not grant “relief against state officials on the basis of state law, whether
prospective or retroactive.” Pennhurst, 465 U.S. at 106. In Pennhurst, the Supreme Court
clarified that “neither pendent jurisdiction nor any other basis of jurisdiction may override the
Eleventh Amendment. A federal court must examine each claim in a case to see if the court's
jurisdiction over that claim is barred by the Eleventh Amendment.” Id. at 121 (discussing the
tension between pendant jurisdiction and Eleventh Amendment jurisprudence).
Here, Plaintiffs allege that the OPCP and the Prosecutor in his official capacity violated a
number of state laws while executing their duties as agents of the state. As stated supra,
Plaintiffs’ claims seek judgment that will ultimately be paid from the state treasury.
Additionally, the OPCP is an agent of the state, acting under the auspices of the Attorney
General. Accordingly, Plaintiffs’ state claims against the Defendants in their official capacities
are barred by the Eleventh Amendment.
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III.
Conclusion
For the foregoing reasons, Defendants’ motion is GRANTED and Plaintiffs’ claims
against the OPCP and the Prosecutor in his official capacity are dismissed with prejudice. An
appropriate order shall accompany this opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
Dated: March 30, 2012
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