PITTMAN v. METUCHEN POLICE DEPARTMENT et al

Filing 36

MEMORANDUM OPINION fld. Signed by Judge Kevin McNulty on 3/14/13. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WILLIAM PITTMAN,

Civ. No. 2:12-cv-02044 (KM)
(MAH)

Plaintiff,
v.

MEMORANDUM OPINION

METUCHEN POLICE DEPARTMENT, et

1
Defendants

MCNULTY, District Judge
This matter comes before this Court on the motion of certain Defendants,
the Middlesex County Prosecutor’s Office (“MCPO”), Middlesex County
Prosecutor Bruce J. Kaplan, and Middlesex County Assistant Prosecutor Jason
Boudwin (together, the “Prosecutors”) (MCPO and the Prosecutors are
collectively referred to as the “MCPO Defendants”). They move to dismiss the
Complaint of pro se plaintiff William Pittman for lack of subject matter
jurisdiction, pursuant to FED. R. Civ. P. 12(b)(1), and for failure to state a claim
upon which relief can be granted, pursuant to FED. R. Civ. P. 12(b)(6). For the
reasons set forth below, the MCPO Defendants’ motion is granted.

I.

FACTUAL BACKGROUND
This action stems from the April 7, 2010 arrest of Plaintiff on “peeping

torn” charges, and his subsequent prosecution by the MCPO Defendants. At
approximately 11:30pm on April 7, 2010, the Metuchen Police received a call

from Metuchen resident Eric Goldenberg reporting that a male individual was
“walking around his neighbor[’] s yard wearing all black clothes.” (Compl.

¶ 8.)

Mr. Goldenberg stated that he had observed the individual “[w]alking around
his neighbor[’]s yard for about 10 minutes. (Id.) Metuchen Police Department
Officer Wayne Karalevich responded to the scene, spoke with Mr. Goldenberg,
and asked him to identify the area where he had observed the individual who
prompted his call. (Id.) Mr. Goldenberg identified the backyard of the residence
at 30 McCoy Avenue. Upon entering the yard, Officer Karalevich heard
movement which sounded like someone running. (Id.) Officer Karalevich started
running towards McCoy Avenue, where he encountered a man walking briskly.
(Id.) Officer Karalevich immediately detained the individual, who was later

identified as William Pittman, the plaintiff here. (Id.)
The Complaint alleges that Mr. Goldenberg and his girlfriend, Evelyn
Magrini, then positively identified Pittman as the person who had been in the
yard. (Compl.

¶ 8.) At that point, Pittman was arrested and brought to the

police station. (Id.) He was charged with violating N.J.S.A. 2C: 18-3b(3), Defiant
Trespass, and N.J.S.A. 2C: 18-c, Peering into windows or other openings of
dwelling places.
On April 4, 2012, Pittman filed this action. (Docket Entry No. 1.) At that
time, his state criminal charges were still pending. On May 21, 2012, after a
jury trial by a jury in Middlesex County Superior Court, Pittman was found
guilty on the peering charge. (Plaintiff’s Opp. Brief at 5.)

2

In his pro se Complaint, Plaintiff appears to allege claims under 42
U.S.C.

§

1983 and 1988, as well as violations of the Fourth and Fourteenth

Amendments to the Constitution of the United States. The Complaint alleges
that Assistant Prosecutor Boudwin presented the charges against Plaintiff to
the grand jury. (Id. at

¶

3.) The Complaint appears to allege that Sergeant Jim

Connolly of the Metuchen Police Department deliberately made false
statements to the grand jury in order to “get an indictment by any means
necessary” and that all of the MCPO Defendants were complicit in Sergeant
Connolly’s alleged perjury. (Id. at

¶

33.) The repeated theme of the Complaint is

that the MCPO Defendants, in concert with the Metuchen Police Department,
acted “with malice” to indict Plaintiff, on charges that were false and lacked
probable cause; that this was done with the improper intent to send plaintiff to
prison; and that the MCPO Defendants concocted false evidence and false
grand jury testimony. As to the MCPO Defendants, the Court interprets this
action as one for malicious prosecution.
On July 26, 2012 the MCPO Defendants moved to dismiss the
Complaint. (Docket Entry No. 15.) The MCPO Defendants contend that, as
arms of the state, they are immune from the instant action by virtue of the
Eleventh Amendment. This Court agrees. And those claims that survive are
nevertheless defective as a matter of law.
II.

STANDARD OF REVIEW
Motions to dismiss for lack of subject matter jurisdiction pursuant to

FED.

R. Civ. P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co.,
3

67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges are either
facial or factual attacks.

See 2 JAMEs WM. MOORE, MOORE’S FEDERAL PRAcTIcE

§

12.30[4] (3d ed. 2007). The defendant may facially challenge subject matter
jurisdiction by arguing that the complaint, on its face, does not allege sufficient
grounds to establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d at
438. Under this standard, a court assumes that the allegations in the
complaint are true, and may dismiss the complaint only if it appears to a
certainty that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721

F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
The MCPO Defendants’ arguments that they are immune from suit based
on the Eleventh Amendment constitute a facial challenge to the jurisdictional
basis for the Complaint. Accordingly, the Court must take the allegations of the
Complaint as true in considering those arguments. See Gould Elecs., Inc. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
In addition, and in the alternative, the motions seek dismissal for failure
to state a claim. Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to state a claim upon
which relief can be granted. The moving party bears the burden of showing that
no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take
all allegations in the complaint as true and view them in the light most
favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump
4

Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(“reasonable inferences” principle not undermined by later Supreme Court
Twombly case, infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a c-ause-of action wi-fl-not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’

.

.

.

it asks for more than a sheer possibility.” Iqbal,

556 U.S. at 678 (2009).

5

III.

DISCUSSION
1. Claims Against The MCPO Defendants In Their
Official Capacities: Eleventh Amendment Immunity
The Eleventh Amendment to the Constitution of the United States

guarantees the states’ immunity from certain claims: “The 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.

amencL Xl. Well settled case law has expanded ±his soealled E1eventh
Amendment immunity.” It is now held to incorporate a more general principle
of sovereign immunity that bars citizens from bringing suits for damages
against any state in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63
(1974); see also Kelley v. Edison Twp., No. 03—4817, 2006 WL 1084217, at *6
(D.N.J. Apr. 25, 2006) (citing Bennett v. City of Ati. City, 288 F. Supp. 2d 675,
679 (D.N.J. 2003)).
The Eleventh Amendment immunity applies “even though the state is not
named a party to the action, as long as the state is the real party in interest.”
Carter v. City of Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999) (quotations and
emphasis omitted); see also Chisoim v. McManimon, 275 F.3d 315, 322-23 (3d
Cir. 2001) (“Eleventh Amendment immunity may be available to a state partyin-interest notwithstanding a claimant’s failure to formally name the state as a
defendant.”) And the state is the real party in interest to a lawsuit if the named

6

defendant is in fact an “arm of the state.” See Chisoim, 275 F.3d at 323; Carter,
181 F.3d at 347.
In this Circuit, courts examine three factors (the “Fitchik factors”) when
considering whether a named defendant is an “arm of the state”: “(1) whether
payment of a judgment resulting from the suit would come from the state
treasury, (2) the status of the entity under state law, and (3) the entity’s degree
of autonomy.” Chisolm, 275 F.3d at 323; see also Fitchik v. New Jersey Transit
Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989). In this case, those
factors establish that the MCPO defendants, acting in their official capacities,
are entitled to claim Eleventh Amendment immunity as “arms of the state.”
First and most importantly, the payment of any judgment arising out of
this suit would come from the state treasury. See generally Wright v. State, 788
A.2d 443, 464 (N.J. 2001) (“[T]he State should be obligated to pay the county
prosecutors and their subordinates’ defense costs and to indemnify them if
their alleged misconduct involved the State function of investigation and
enforcement of the criminal laws.”) (citation omitted).
Second, it is clear that under New Jersey law, the MCPO and its
prosecutors act on behalf of the State when they are performing prosecutorial
functions. IcL at 462 (“when prosecutors perform their law enforcement
function, they are discharging a State responsibility that the Legislature has
delegated to the prosecutors

...

the county prosecutors’ law enforcement

function is clearly a State function.”)

7

Finally, the MCPO Defendants, when acting in their prosecutorial
capacities, are not autonomous entities, as a matter of law. Under New Jersey
law, the Attorney General maintains a supervisory role over the MCPO in its
execution of law enforcement policy. See Wright, 788 A.2d at 462. The Attorney
General also is authorized to intervene and take over any investigation or
prosecution initiated by county prosecutors. N.J. STAT. ANN.

§ 52: 17—106B.

Applying the Fitchik factors to this action, this Court finds that the
MCPO Defendants are arms of the state, and thus, that New Jersey is the real
party in interest to the litigation. The MCPO Defendants are therefore entitled
to Eleventh Amendment immunity against claims asserted against them in
their official capacities.
There are three narrow exceptions that limit a state’s Eleventh
Amendment immunity. None, however, apply to the claims that Plaintiff asserts
against the MCPO Defendants here. First, Congress may have the authority to
abrogate a state’s immunity for rights protected under the Fourteenth
Amendment. See College Say. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999). Such abrogation must be “an
unequivocal expression of congressional intent to overturn the constitutionally
guaranteed immunity of the several States.” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984) (internal quotation omitted). Here, the
opposite is the case. The Supreme Court has specifically held that Congress
has not abrogated immunity for actions brought pursuant to 42 U.S.C.

8

§ 1983.

See Quem v. Jordan, 440 U.S. 332, 340 (1979) (internal citation omitted).
Congress has not abrogated New Jersey’s Eleventh Amendment immunity.
A second exception to state sovereign immunity is state consent to suit.
See Biatchford v. Native Viii. of Noatak & Circle Viii., 501 U.S. 775, 779 (1991).
A state must, however, clearly and unequivocally declare its intention to
submit to federal jurisdiction. See Florida Prepaid, 527 U.S. at 675-76 (quoting
Great N. Life Ins., v. Read, 322 U.S. 47, 54 (1944)). New Jersey has never
explicitly consented to a suit like this one.
A third and final exception allows suits against state officials in their
official capacities where a plaintiff seeks prospective, injunctive relief for
ongoing violations of federal law. See Ex Parte Young, 209 U.S. 123, 159-60
(1908). This exception is similarly unavailable, as Plaintiff does not seek
injunctive relief from the MCPO Defendants, but rather seeks money damages
for alleged past wrongs.
In this action, the MCPO Defendants, as arms of the State of New Jersey,
enjoy Eleventh Amendment immunity from suit in this Court. No exception
that would impair or destroy that immunity is present here. Thus, the claims
against the MCPO Defendants in their official capacities must be dismissed.
2. Claims Against MCPO Defendants in Their Individual
Capacities: Prosecutorial Immunity and Failure to State
a Viable Federal 1983 Claim of Malicious Prosecution
The Complaint fails to specify whether the Prosecutors, Kaplan and
Boudwin, are being sued in their individual capacities. The issue is significant
because a person, even a state official, sued in his individual capacity is not
9

shielded by the Eleventh Amendment immunity.’ As the Third Circuit has
pointed out, “[i]t is obviously preferable for the plaintiff to be specific in the first
instance to avoid any ambiguity.” Melo v. Hafer, 912 F.2d 628, 636 n.7 (1990),
aff’d, 502 U.S. 21, 112 S.Ct. 358 (1991). But as Plaintiff is pro Se, the Court

will interpret the Complaint liberally as asserting claims against Kaplan and
Boudwin in their individual capacities.
a. Extrinsic documents

Plaintiff’s brief in opposition to the motion to dismiss has exhibits
attached. These are documents pertaining to his arrest and subsequent
indictment: e.g., a police report dated April 8, 2010, a grand jury transcript
dated August 25, 2010, the complaint

—

warrant, and briefs supporting and

opposing Plaintiff’s motion to dismiss the state court indictment.
Typically, when a federal court relies on matter outside of the pleadings,
it must convert a motion to dismiss into a motion for summary judgment
pursuant to Rule 56, Fed. R. Civ. P. In announcing its intention to do so, the

“[S]ince Exparte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714]
(1908),” we said, “it has been settled that the Eleventh Amendment

provides no shield for a state official confronted by a claim that he had
deprived another of a federal right under the color of state law.” [citing
Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687 (1974).]
While the doctrine of Exparte Young does not apply where a plaintiff
seeks damages from the public treasury, damages awards against
individual defendants in federal courts “are a permissible remedy in
some circumstances notwithstanding the fact that they hold public
office.” 416 U.S., at 238, 94 S.Ct., at 1687. That is, the Eleventh
Amendment does not erect a barrier against suits to impose “individual
and personal liability” on state officials under § 1983. ibid.
Haferv. Melo, 502 U.S. 21, 112 S.Ct. 358 (1991).

10

court will then provide all parties with a reasonable opportunity to present all
material pertinent to a Rule 56 motion. See FED. R. Civ. P. 12(d). That
procedure allows every party a fair opportunity to respond to any extrinsic
documents that the court considers. Pension Ben. Guar. Corp. v. White Consol.
Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A court may, however,
without converting the motion to one for summary judgment, consider
documents to which a plaintiff refers in the complaint or upon which its claims

are based. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997); Pension Benefit, 998 F.2d at 1196. In such a case, a party
“obviously is on notice of the contents of the document, and the need for a
chance to refute evidence in greatly diminished.” Pension Benefit, 998 F.2d
1192 at 1196—97. Here, the Complaint refers to the extrinsic documents related
to Pittman’s arrest and prosecution, and his claim for malicious prosecution is
plainly based on those same documents. And of course it is plaintiff, not
defendant, who submitted the documents to the court. Therefore, I may and
will consider the exhibits included in Pittman’s opposition papers without
converting the motion to dismiss into a motion for summary judgment. In any
event, they are of limited significance, in that they merely confirm what is
inferable from the Complaint. Consideration of them does not affect the result.
b. Prosecutorial immunity

Before considering whether Plaintiff has adequately alleged the elements
of a malicious prosecution claim, I will address the threshold issue of
prosecutorial immunity. In Imbler v. Pachtman, 424 U.S. 409 (1976), the
11

Supreme Court held that a prosecutor is absolutely immune from damages
under § 1983 for acts that are “intimately associated with the judicial phase of
the criminal process,” id. at 430—31, including use of false testimony and
suppression of evidence favorable to the defense by a police fingerprint expert
and investigating officer. Since Imbler the Supreme Court has held that
“absolute immunity applies when a prosecutor prepares to initiate a judicial
proceeding, or appears in court to present evidence in support of a search
warrant application.” Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009)
(citations omitted). The Court of Appeals for the Third Circuit recently
confirmed prosecutorial immunity in § 1983 actions in LeBlanc v. Stedman,
483 Fed. App’x 666 (3d Cir. 2012) (non-precedential).
These defendants are absolutely immune from the claims of malicious
prosecution alleged in this Complaint. See Rehberg v. Paulk,

—

U.S.

132 S.Ct. 1497, 1504, 182 L.Ed.2d 593 (2012); Imbler, 424 U.S. at 430—3 1. The
acts alleged, however wrongful, were taken in exercise of these defendants’ core
functions as prosecutors. That much is obvious from the Complaint. In an
excess of caution, I have examined the additional exhibits submitted by
Plaintiff, but I find nothing there to alter that conclusion. Because the
misconduct alleged in the Complaint against the prosecutors consists of acts
taken in their role as advocates for the state, the Section 1983 damages claims
against them must be dismissed on grounds of absolute prosecutorial
immunity.

12

c. Malicious prosecution: failure to state a

1983 claim

In the alternative, even if I had not found these defendants to be
immune, I would find that the Complaint fails to state a viable claim of
malicious prosecution under 42 U.S.C.

§ 1983.2 The elements of the state-law

tort of malicious prosecution are incorporated in an analogous federal Section
1983 claim. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc)
(applying the Restatement (Second) of Torts

§ 659, 660 to determine whether a

Section 1983 malicious prosecution claim was deemed to have terminated in
favor of the accused); see also Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir.
2002) (same); Hifirty v. Shipman, 91 F.3d 573 (3d Cir. 1996) (same). Thus, to
state a Section 1983 claim for malicious prosecution, a plaintiff must allege the
following essential elements: (1) defendant initiated a criminal proceeding; (2)
the criminal proceeding ended in the plaintiff’s favor; (3) defendant initiated the
criminal proceeding without probable cause; (4) defendant acted maliciously or
for a purpose other than bringing the plaintiff to justice; and (5) plaintiff
suffered deprivation of liberty consistent with a violation of the Fourth
Amendment or a violation of another explicit text of the Constitution. Johnson
v. Knorr, 477 F.3d 75, 8 1—82 (3d. Cir. 2007) (citing Estate of Smith v. Marasco,
318 F.3d 497, 521 (3d Cir. 2003)).
I here focus on the critical second element. The complaint does not allege
that the criminal proceeding ended in Pittman’s favor. Indeed, it is a matter of
This substantive deficiency would bar relief against the MCPO as well, even if it
were not immune under the Eleventh Amendment.
2

13

public record that it did not; Pittman was convicted by a jury of violating the
State “peering” statute.
3
In addition, and in the alternative, then, the Complaint must be
dismissed as against the MCPO Defendants because it fails to state a Section
1983 claim for malicious prosecution.
IV.

CONCLUSION
For the reasons stated above, the MCPO Defendants’ motion to dismiss

the Complaint for lack of subject matter jurisdiction, pursuant to FED. R. CIV.
P. 12(b)(1), is granted on grounds of Eleventh Amendment immunity and
prosecutorial immunity. In the alternative, the Complaint is dismissed as
against the MCPO Defendants for failure to state a claim for malicious
prosecution under 42 U.S.C.

§ 1983, pursuant to

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

Dated: March 14, 2013

Mc

KEVIN MCNULTY

United States District J

Where a jury has found guilt beyond a reasonable doubt, the other elements
may become problematic as well. The existence or not of probable cause and the
motives of the police and prosecutors, for example, lose much of their significance.
3

14

ge