MOORE v. CARTERET POLICE DEPT. et al

Filing 30

OPINION. Signed by Judge Jose L. Linares on 12/8/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEROY T. MOORE,
Civil Action No. 13-943 (iLL)
Plaintiff,
v.

:

OPINION

CARTERET POLICE DEPARTMENT,
et a!.,
Defendants.

LINARES, District Judge
This matter comes before the Court on the motion of Defendants Borough of Carteret,
Carteret Police Department, Ptl. Marcus Rosario, Ptl. Kazio, Ptl. Esposito, Sgt. Hart, and Sgt.
Muzyka (hereinafter the “Carteret Defendants”), for summary judgment dismissing the
Complaint with prejudice in this matter. (ECF No. 24.) Defendants Louis Reyes and Michael
Dammann join in the Carteret Defendants’ motion.’ (ECF Nos. 25, 26.) This motion is being
considered on the papers, pursuant to Federal Rule of Civil Procedure 78. For the reasons set
forth below, the Court will grant the motion and dismiss the Complaint with prejudice.
I. PROCEDURAL BACKGROUND
Plaintiff filed his Complaint in the Superior Court of New Jersey, Law Division,
Middlesex County, under Docket No. MID-L-39-13, on or about January 2, 2013, against the
For sake of ease and clarity, because Defendants Reyes and Dammann, who were employed by
the Carteret Police Department during the incidents at issue in this action, have joined with the
Carteret Defendants in their motion for summary judgment, this Court’s reference to the
“Carteret Defendants” shall include both Defendants Reyes and Dammann.
1

named Carteret Defendants, and Middlesex County, Middlesex County Prosecutor’s Office
(“MCPO”), Assistant Prosecutor Christopher L.C. Kuberiet, and Assistant Prosecutor Marcia
Silva (“MCPO Defendants”). On February 15, 2013, the Carteret Defendants removed the state
action to this District Court, upon the consent of all named Defendants, pursuant to 28 U.S.C.
1441(b), 1446, asserting that this Court has original jurisdiction under 28 U.S.C.

§

§ 1331 over

Plaintiff’s claims, which are grounded on violations of federal law under 42 U.S.C.

§ 1983.

Plaintiff did not seek to remand the matter back to state court.
2
In his original Complaint, Plaintiff alleges that, on May 21, 2009, Defendants Ptl. Louis
Reyes, Ptl. Rosario, Pt!. Kazio, Ptl. Esposito, Sgt. Hart and Sgt. Muzyka of the Carteret Police
Department, “falsely imprisoned Plaintiff alleging he (Plaintiff) possessed what was allegedly
known to be cocaine [and a straw], [and] failed to prove Plaintiff committed any crime,” in
violation of his rights under the Eighth and Fourteenth Amendments. (ECF No. 1-1, Complaint
at

¶J 1, 3,) On July 23, 2009, Defendant Detective Lieutenant Michael Darnman allegedly

reported that he took all evidence seized from Plaintiff at his arrest to a lab company, but the lab
report purportedly does not show evidence of a straw or twenty dollar bill taken from Plaintiff.

This Court notes that Plaintiff has filed numerous actions in the District of New Jersey, against
many of the same defendants as named in this action, and listed as follows: Moore v. Middlesex
County Prosecutor’s Office, et aL, Civil No. 11-6198 (JLL) (consolidated with associated case,
Civil No. 11-281 (JLL)); Moore v. Middlesex County Prosecutor’s Office, et al., Civil No. 113879 (JLL) (dismissed with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and
191 5(b)( 1)); Moore v. Dow, et a!., Civil No. 11-281 (iLL) (pending); Franklin, et al. v. Borough
of Carteret, et a!., Civil No. 10-1467 (JLL) (dismissed with prejudice pursuant to 28 U.S.C.
§
191 5(e)(2)(B)(ii) and 191 5(b)( 1)); Moore v. Carteret Police Department, et a!., Civil No. 043313 (SRC) (summary judgment granted defendants on May 3, 2007); Moore v. Novak, et al.,
Civil No. 04-1250 (WHW) (stipulation of dismissal filed on June 25, 2008); and Moore
v.
Comba, et al., Civil No. 03-2521 (WHW) (dismissed with prejudice pursuant to 28 U.S.C.
§
191 5(e)(2)(B)(ii) and 191 5(b)( 1)).
2
2

Plaintiff thus alleges that Defendant Damman “tampered with physical evidence.” (Id., Factual
Background at ¶ 5.)
Plaintiff further alleges that, in September 2009, Defendant Reyes testified at a grand jury
hearing that Plaintiff possessed a controlled dangerous substance and drug paraphernalia. (Id.,
Factual Background at

¶

2.) Also, according to Plaintiff, on September 17, 2009, Defendant

Assistant Prosecutor Silva “failed to present exculpatorial, discoverable evidence to the grand
jury” that was in the possession of MCPO Defendants. (Id., Factual Background at 4.)
¶
The Complaint also alleges that, from February 2010 to December 17, 2012, the MCPO
Defendants “maliciously prosecuted” Plaintiff until December 17, 2012, when the charges
against Plaintiff terminated in his favor upon the written decision of the Honorable Michael A.
Toto, J.S.C., in which Judge Toto dismissed the indictment. (Id., Factual Background at 3.) In
¶
particular, Plaintiff alleges that, on December 20, 2012, Defendant Kuberiet convened a second
grand jury and conspired with Reyes to testify in conformity with Judge Toto’s December 17,
2012 opinion. According to Plaintiff, Kuberiet instructed Reyes to “tell members of said grand
jury everything the Superior Court Judge (Toto) stated in his opinion dated December 17, 2012
[sic) wasn’t done September 17, 2009.”

(Id., Factual Background at ¶6.) (parentheses and

emphasis in original).
Plaintiff’s Complaint further alleges that the MCPO Defendants knew that the former
indictment (# 09-09-1644) had been dismissed, but they conspired to violate Plaintiff’s
constitutional rights by bringing a superseding indictment under the same statute, N.J.S.A.
2C:35-l0(a)(l), as the one dismissed, to a second grand jury.

Plaintiff asserts that the

Defendants’ re-filing of criminal charges against him violated his “constitutional rights under
false imprisonment, and double jeopardy clause.” (Id., Factual Background at 6, 7.)
¶J
3

The Complaint also charges that Kuberiet “filed false reports in connection with his
actions instituted on December 20, 2012.” (Id., Factual Background at ¶ 7, emphasis in original.)
Plaintiff further alleges that a Carteret police officer conspired with Kuberiet to violate Plaintiff’s
rights under N.J.S.A. 10:6-1. (Id., Factual Background at

¶

6.) Plaintiff finally alleges that all

Defendants violated his constitutional rights before dismissal of the indictment on December 17,
2012. (Id., Factual Background, last unnumbered paragraph.)
The Complaint asserts claims of false imprisonment and excessive bail against all named
Defendants. In addition, the Complaint asserts claims of malicious prosecution and violation of
the double jeopardy clause against the MCPO Defendants, more particularly, Defendant
Kuberiet. Plaintiff generally cites a violation of his Eighth and Fourteenth Amendment rights.
He seeks punitive and compensatory damages.
On March 11, 2013, the MCPO Defendants filed a motion to dismiss the Complaint
pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 6.) Plaintiff filed a response to the motion on or
about March 18, 2013. (ECF No. 9.) On May 31, 2013, counsel for the MCPO Defendants
wrote to the Court to inform that, on May 24, 2013, Plaintiff had plead guilty to criminal charges
that are the subject of this litigation. (ECF No. 12.) This Court granted the MCPO Defendants’
motion to dismiss on September 20, 2013, and the Complaint was dismissed with prejudice as to
the MCPO Defendants accordingly. (ECF Nos. 13, 14.)
Thereafter, on June 25, 2014, the Carteret Defendants filed a motion for summary
judgment. (ECF No. 24.) On June 26, 2014, Defendants Louis Reyes and Michael Dammann
joined in the summary judgment motion filed by the Carteret Defendants, relying on the Brief
and Exhibits submitted by the Carteret Defendants.

(ECF Nos. 25 and 26, respectively.)

Plaintiff filed an opposition on July 14, 2014. In his opposition, Plaintiff argues, among other
4

things, that he is entitled to discovery before summary judgment can be granted. Principally, it
seems that Plaintiff is seeking a copy of the July 2009 lab report. Plaintiff also argues that all of
his claims accrued on December 17, 2012, when the first indictment was dismissed. (ECF No.
27.)

II. STATEMENT OF FACTS
The Carteret Defendants rely on the following statement of undisputed facts, submitted
pursuant to Local Civil Rule 56.1. On May 21, 2009, Defendants Hart, Muzyka, Rosario, Kazio,
Esposito and Reyes of the Carteret Police Department were patrolling the area of 100 Roosevelt
Avenue known as Roosevelt Village in Carteret, New Jersey. The officers observed Plaintiff and
another individual, Demond Bullock, sitting in a vehicle parked in Roosevelt Village. Both
Plaintiff and Bullock were known to have outstanding warrants, and a warrant check confirmed
the existence of outstanding warrants for them. Plaintiff was then arrested on the outstanding
warrants, as documented by the Arrest Report prepared by Defendant Reyes, dated May 21,
2009. (ECF No. 24-3, Carteret Defendants’ Brief at 3,

¶ 1-4.)

A search incident to Plaintiff’s arrest was conducted and it was discovered that Plaintiff
possessed one clear plastic “Ziploc” style bag containing green vegetation believed to be
marijuana and a twenty dollar bill with a powdery white substance assumed to be cocaine.
Accordingly, Plaintiff was charged with possession of cocaine and marijuana. (Id. at 3 and 4,

¶J

5, 6, Exhibits B, C.)
In the Investigation Report prepared by Defendant Rosario on May 21, 2009, Rosario
reports that the Honorable Allen P. Comba, J.S.C., authorized the issuance of a warrant
complaint charging Plaintiff with possession of cocaine and a summons-complaint charging

5

Plaintiff with possession of marijuana. Judge Comba released Plaintiff on his own recognizance
that same day. (Id. at ¶J 7, 8; Exs. B, C.)
At the time of his arrest, the Carteret officers had confirmed that Plaintiff had numerous
active warrants for outstanding fines and court costs of $5,691.50. (Id. at

¶ 9,

Exs. B, C, and F

through N.) Accordingly, Plaintiff was arrested and taken to the Middlesex County Corrections
Center pursuant to the outstanding warrants. (Id., ¶ 10, EXs B, C.)
Thereafter, a Middlesex Grand Jury indicted Plaintiff on one charge of third degree
possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(l). (Id. at

¶

11.) However, on

December 17, 2012, the Honorable Michael A. Toto, J.S.C., dismissed the Indictment because
the State had failed to establish aprirnafacie case. Namely, Judge Toto found that the State had
not presented sufficient evidence to the grand jury to support the charge that the white powdery
substance on the twenty dollar bill was cocaine. The State relied solely on the testimony of
Officer Reyes that the powdery substance was “known” to be cocaine, but Reyes failed to testify
that he had witnessed Plaintiff engaging in illegal drug activity before his arrest or that Reyes
knew Plaintiff had been involved in illegal drug activity in the past. Moreover, no laboratory
report had been presented to the Grand Jury confirming that the powdery substance was cocaine,
and Judge Toto noted that a laboratory report was only recently presented to the court.
Accordingly, Judge Toto dismissed the indictment without prejudice.

Nevertheless, Judge Toto

denied Plaintiff’s motion to dismiss the indictment on other grounds raised, including vindictive
prosecution,

selective

prosecution,

malicious

prosecution,

or violation

constitutional rights under the Fifth, Eighth and Fourteenth Amendments. (Id.,
Judge Toto’s Dec. 17, 2012 Mem. Decision at 5.)

6

of Plaintiff’s

¶

13, Ex. 0

—

The State then re-presented the May 21, 2009 charge of possession of cocaine to a
Middlesex Grand Jury, relying on the laboratory report that confirmed the white powdery
substance recovered from Plaintiff on May 21, 2009 was in fact cocaine. The Grand Jury again
indicted Plaintiff on one charge of third degree possession of cocaine, in violation of N.J.S.A.
2C:35-l0(a)(l). (Id. atJ 14.)
On or about January 2, 2013, Plaintiff filed this civil rights complaint alleging that the
Carteret Defendants falsely arrested him on May 21, 2009, that Defendant Damman tampered
with physical evidence resulting in Plaintiffs false imprisonment, that Defendant Reyes testified
falsely before the Grand Jury on September 17, 2009, subjecting Plaintiff to malicious
prosecution, and that the superseding indictment constituted double jeopardy.

(ECF No. 1,

Complaint at ¶J 1-6.)
On May 24, 2013, Plaintiff pled guilty to the charge of possession of cocaine on May 21,
2009, as well as other criminal charges unrelated to this case.
Defendants’ Brief at 7,

(ECF No. 24-3, Carteret

¶ 21, Ex. R May 24, 2013 Plea Form and Ex. S
—

—

May 24, 2013 Plea

Transcript.) During his plea, Plaintiff admitted that he possessed cocaine, which he knew to be
illegal, and he also admitted that he possessed marijuana and drug paraphernalia on May 21,
2009. (Id.,

¶ 22, 23; Ex. S

—

Plea Transcript at 4:3-9; 4:19-23.) Plaintiff further admitted that

there were outstanding warrants for his arrest on May 21, 2009. More significantly, Plaintiff
admitted that cocaine was discovered during the search incident to his arrest on May 21, 2009.
(Id.,

¶J 24, 25; Ex. S

—

T5:12-25.)

On October 31, 2013, the Honorable Bradley J. Ferencz, J.S.C. sentenced Plaintiff to
three years in prison pursuant to Plaintiff’s May 24, 2013 plea on the possession of cocaine
charge, but Plaintiff received credit for time served. Plaintiff then sought a modification of his
7

sentence, and on November 15, 2013, Judge Ferencz modified Plaintiff’s sentence to a five-year
probation term with Plaintiff required to attend and successfully complete a drug rehabilitation
program. (Id.,
and Ex. U

—

¶J 26-29, Ex. T

—

Oct. 31, 2013 Sentencing Transcript at 22:10-23:9; 15:10-18;

Nov. 15, 2013 Transcript at 7:1-8:24.)

Plaintiff was directed to report to the

Middlesex County Probation Department on November 18, 2013, immediately before his
admission to a drug rehabilitation program that same day. (Id. at ¶ 30, Ex. U at 11:16-12:19.)
Plaintiff failed to be admitted to a drug rehabilitation program and a warrant was issued
for violation of the terms of his probation, and Plaintiff was arrested on April 9, 2014. On June
12, 2014, Judge Ferencz sentenced Plaintiff to a 1 7-year prison term with 8 years of parole
ineligibility.

(Id.,

¶ 31, Ex. V

—

June 12, 2014 Transcript at 25:5-7; 28:19-29:5; 27:7-28:12;

29:14-30:2.)
III. LEGAL STANDARD
Summary judgment is appropriate when, drawing all reasonable inferences in the non
movant’ s favor, there exists no “genuine dispute as to any material fact” and the movant is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The moving party is entitled to judgment as a matter of law when the
non-moving party fails to make “a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The Court must, however, consider all facts and their reasonable inferences in the light
most favorable to the non-moving party. See Pennsylvania Coal Ass ‘ii v. Babbitt, 63 F.3d 231,
236 (3d Cir. 1995).

If a reasonable juror could return a verdict for the non-moving party

regarding material disputed factual issues, summary judgment is not appropriate. See Anderson,
477 U.S. at 242—43 (“At the summary judgment stage, the trial judge’s function is not himself to
8

weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.”).

See also Prince v. Aiellos, Civil No. 09-5429 (JLL), 2013 WL

6865619, *2 (D.N.J. Dec. 20, 2013), qff’d,

---

F. App’x

----,

2014 WL 6765822 (3d Cir. Dec. 2,

2014).
IV. DISCUSSION
A. Plaintiff’s False Arrest and Imprisonment Claims Are Barred by the Statute of Limitations
The Carteret Defendants first argue that all of Plaintiffs claims arise from alleged
violations occurring on May 21, 2009 (the search and arrest), July 23, 2009 (the tampering of the
lab report), and September 17, 2009 (Reyes’ false testimony before the Grand Jury), and are thus
time-barred because Plaintiff did not file his Complaint until January 2, 2013, beyond the two
year statute of limitations. Plaintiff argues, however, that the statute of limitations did not begin
to run until December 17, 2012, the date the first indictment was dismissed.
Federal courts look to state law to determine the limitations period for
See Wallace v. Kato, 549 U.S. 384, 387—88 (2007). A

§ 1983 actions.

§ 1983 complaint is “characterized as a

personal injury claim and thus is governed by the applicable state’s statute of limitations for
personal-injury claims.” Dique v. N.J State Police, 603 F.3d 181, 185 (3d Cir. 2010) (citing
Cito v. Bridgewater Twp. Police Dep ‘t, 892 F.2d 23, 25 (3d Cir. 1989)); see also Wallace, supra;
Wilson v. Garcia, 471 U.S. 261, 276 (1985). In New Jersey,

§ 1983 claims are subject to New

Jersey’s two-year statute of limitations on personal injury actions. See Dique, 603 F.3d at 185;
see also N.J. Stat. Ann.

§ 2A:l4—2. Accordingly, Plaintiffs § 1983 claims against the Carteret

Defendants are subject to this two-year period.

9

Similarly, Plaintiff’s state law claims asserted pursuant to the New Jersey Civil Rights
Act (“NJCRA”) are also subject to a two-year statute of limitations. Hawkins v. Feder, A-400410T2, 2012 WL 5512460, *4..5 (N.J. Super. A.D. Nov. 15, 2012).
Here, as noted above, Plaintiff filed his Complaint on January 2, 2013. Thus, any claim
asserted in his Complaint that accrued prior to January 2, 2011, would be time-barred. For
instance, in his Complaint, Plaintiff alleges false arrest, false imprisonment, and excessive bail
claims in May 2009, in violation of his Eighth and Fourteenth Amendment rights. (ECF No. 1-1,
Compl. at

¶J 1, 3, Factual Background, ¶J 1.) These § 1983 claims are subject to the two-year

limitation period. The Supreme Court has held that the statute of limitations for a claim of false
arrest or false imprisonment begins to run “at the time the claimant becomes detained pursuant to
legal process.”

Wallace, 549 U.S. at 397.

Thus, in this case, the statute of limitations

commenced on May 21, 2009, when Plaintiff alleges that he was subject to false imprisonment
and excessive bail.

Specifically, May 21, 2009 was the date that Plaintiff was arrested and

incarcerated on outstanding warrants. The record also shows that Plaintiff was released on his
own recognizance on May 21, 2009. (ECF No. 24-6, Carteret Defendants’ Ex. B.) Plaintiff filed
his

§ 1983 action in state court on January 2, 2013, well beyond the expiration of the limitations

period.
Likewise, any excessive bail claim would have accrued at that time, and is now beyond
the expiration of the limitations period. See Wallace, 549 U.S. at 391. Moreover, any related
state law claims asserted against the Carteret Defendants are similarly time-barred.

See

Hawkins, 2012 WL 5512460 at *4..5 More significantly, however, any claim of excessive bail
must fail because Plaintiff was released on his own recognizance.

Therefore, the Carteret

Defendants are entitled to summary dismissal of these claims against them.
10

Nevertheless, Plaintiff’s claim against Defendant Dammann for tampering with evidence
on July 23, 2009, and Plaintiff’s claim against Defendant Reyes alleging false testimony before
the Grand Jury on September 17, 2009, are part of Plaintiff’s overall allegations of malicious
prosecution. The Carteret Defendants concede that Plaintiff’s claim of malicious prosecution did
not begin to run until December 17, 2012, when the first indictment was dismissed without
prejudice. (ECF No. 29, Carteret Defendants’ Letter Reply Brief at 3.) Therefore, these claims
are not subject to summary dismissal as time-barred.
B. False Testimony During Grand Jury
As noted above, Plaintiff’s sues Defendant Reyes for allegedly testifying falsely before
the Grand Jury on September 17, 2009. The Court presumes that Plaintiff is also alleging that
Reyes testified falsely before the Grand Jury on the superseding indictment after the first
indictment was dismissed on December 17, 2012. This claim fails, however, because a witness
is absolutely immune from suit for testifying falsely. See Rehberg v. Paulk,

---

U.S.

----,

132

S.Ct. 1497, 1506, 182 L.Ed.2d 593 (2012) (witness before grand jury, like trial witness, enjoys
absolute immunity); Briscoe v. LaHue, 460 U.S. 325, 330—346 (1983) (police officer who
testifies in criminal trial enjoys absolute witness immunity for false testimony); Peteete v. Asbury
Park Police Dept., 477 F. App’x 887, 889-90 (3d Cir. 2012) (holding that a grand jury witness
cannot be held liable for perjured testimony); Kuiwicki v. Dawson, 969 F.2d 1454, 1467 and n.
16 (3d Cir. 1992) (witness who testifies in judicial proceeding is absolutely immune for false
testimony).
As the Carteret Defendants aptly argue, Defendant Reyes’ testimony before the Grand
Jury concerning the circumstances leading to Plaintiff’s arrest and later criminal charges is
similar to the situation in Peteete, where the Third Circuit affirmed the district court’s
11

determination that the lead investigator who allegedly testified falsely before a grand jury
regarding the circumstances of Peteete’s arrest was absolutely immune from liability.

See

Peteete, 477 F. App’x at 888-89. Therefore, the Court grants summary judgment in favor of the
Carteret Defendants with respect to this claim, and Plaintiff’s claim against Defendant Reyes
alleging false testimony before the Grand Jury on September 17, 2009 is dismissed with
prejudice accordingly.
C. Malicious Prosecution
Next, Plaintiff asserts a claim of malicious prosecution against the Carteret Defendants
based on allegations that Defendant Reyes testified falsely against Plaintiff before the Grand Jury
on September 17, 2009, and that Defendant Dammann tampered with evidence on July 23,
2009, It also appears, as noted above, that Plaintiff is alleging that Reyes testified falsely before
the Grand Jury on the second or superseding indictment.
To establish a

§ 1983 claim for malicious prosecution, Plaintiff must satisfy each of the

following five elements: “(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.” Minatee v. Philadelphia Police Dept., 502 F. App’x 225,
227 (3d Cir. 2012) (quoting Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc)

(internal quotation marks and citations omitted)).

The Complaint appears to allege that the July 2009 lab report does not show evidence of straw
and the twenty dollar bill taken from Plaintiff on May 21, 2009, and thus, Plaintiff seems to
suggest that Defendant Dammann tampered with the evidence. (ECF No. 1-1, Compl. at Factual
Background, ¶ 5.)
12

Here, the Complaint fails to allege that the December 2012 re-indictment of Plaintiff
terminated in his favor, and therefore, Plaintiff cannot establish all of the requisite elements
needed to prove a malicious prosecution claim under

§ 1983. Indeed, at the time Plaintiff filed

this Complaint, the criminal proceedings on Plaintiff’s re-indictment were still pending, and thus
Plaintiff could not demonstrate that his criminal proceeding had concluded in his favor. More
importantly, however, Carteret Defendants have shown that Plaintiff pled guilty to possession of
cocaine charges on May 24, 2013, and Plaintiff’s allocution at his plea hearing confirmed that he
possessed cocaine on May 21, 2009, which he knew to be illegal. Plaintiff also admitted at his
plea hearing that the cocaine was found on his person, specifically in his pocket, pursuant to a
search incident to his arrest on May 21, 2009. (ECF No. 24-23, Carteret Defendants’ Ex. S

-

May 24, 2013 Plea Transcript at 4:3-16; 5; 12-25.) Therefore, because Plaintiff pled guilty to the
charge that he possessed cocaine on May 21, 2009, Plaintiff simply cannot establish that the
criminal proceedings terminated in his favor, and the malicious prosecution claim must be
dismissed with prejudice for failure to state a claim.
Plaintiff continues to assert that Judge Toto’s dismissal of the first indictment on
December 17, 2012 constitutes the termination of his criminal proceedings in his favor. His
argument lacks merit. Judge Toto dismissed the first indictment without prejudice to the re-filing
of charges. Moreover, Judge Toto expressly stated that the dismissal of the indictment was not
based on any of the following grounds: “vindictive prosecution, selective prosecution, malicious
prosecution, or violation of Defendant’s Constitutional rights under the
Amendments.” (ECF No. 24-19, Ex. 0

—

th
5

th
8

or

th
4

Dec. 17, 2012 Mem. Decision at 5.) Therefore,

Plaintiff cannot establish that the dismissal of the first indictment without prejudice constitutes
the a favorable termination of criminal proceedings against him.
13

Further, Plaintiff cannot establish the requisite element of a malicious prosecution claim
that Plaintiff’s arrest and resulting criminal proceedings lacked probable cause. Judge Toto’s
decision was based solely on the State’s failure to establish the first element of Possession of a
Controlled Dangerous Substance charge, namely, that the white powdery substance discovered
on the twenty dollar bill was cocaine. Judge Toto commented that no laboratory report was
presented to the Grand Jury to confirm that the powdery substance was indeed cocaine, and that
the prosecution instead relied solely on the testimony of Officer Reyes in the presentment of the
charges to the grand jury. (Id. at 4-5.) Indeed, based on these state court findings concerning the
first indictment, Plaintiff also cannot establish the fourth element of a malicious prosecution
claim, i.e., that “the defendants acted maliciously or for a purpose other than bringing the
plaintiff to justice.” See Minatee, 502 F. App’x at 227).
Therefore, because Plaintiff cannot prove three essential elements of a malicious
prosecution claim, that the criminal proceeding ended in his favor, that the criminal proceeding
was initiated without probable cause, and that the Carteret Defendants acted maliciously or for a
purpose other than bringing Plaintiff to justice, Plaintiff’s claims against the Carteret Defendants
based on allegations of malicious prosecution must be dismissed with prejudice.
To the extent that Plaintiff asserts that the second or superseding indictment against him
on the possession of cocaine charge violates his constitutional right against being subjected to
double jeopardy for the same crime, this Court has determined previously that double jeopardy in
this matter did not attach afier the dismissal of the first indictment without prejudice.

In

particular, in the September 20, 2013 Opinion granting summary judgment in favor of the MCPO
Defendants (ECF No. 13), this Court held:

14

The Double Jeopardy Clause of the Fifth Amendment provides: “[NIor shall any person
be subject for the same offence to be twice put in jeopardy of life or limb.” The Double
Jeopardy Clause was designed to protect a person from being subjected to a trial and
possible conviction more than once for an alleged offense. United States v. Figueroa,
683 F.3d 69, 74 (3d Cir. 2012). Thus, if a mistrial is properly declared it does not prevent
re-prosecution. Id.; United States v. Rivera, 384 F.3d 49, 54 (3d Cir. 2004).
The Supreme Court has long held that double jeopardy does not attach until a defendant
has been “put to trial before the trier of facts.” Serfass v. United States, 420 U.S. 377,
388 (1975). For instance, jeopardy has not yet attached when a trial court grants a
defendant’s motion to dismiss the indictment. Id. at 389. In the present case, Plaintiff
has not alleged that a jury was empaneled or that the trial court heard evidence in
connection to his 2009 indictment before the trial court granted Plaintiff’s motion to
dismiss the indictment. Moreover, the indictment was dismissed without prejudice to the
State re-filing charges. Thus, double jeopardy did not attach, and Plaintiff has failed to
state a cognizable claim for recovery of damages based on an alleged double jeopardy
violation. Plaintiff’s double jeopardy claim will be dismissed with prejudice accordingly.
(Id.,

Op. at

13-14.)

Therefore, this Court grants summary judgment on this motion in favor of the Carteret
Defendants, and Plaintiff’s claims against the Carteret Defendants asserting malicious
prosecution and double jeopardy are dismissed with prejudice. Furthermore, because this Court
finds that Plaintiff cannot establish malicious prosecution principally because Plaintiff himself
pled guilty to the May 21, 2009 possession of cocaine charge, this Court does not need to address
the Carteret Defendants’ additional argument in favor of summary judgment, namely, the
argument based on prematurity under Heck v. Humphrey, 512 U.S. 477 (1994).

D. No Liability Established Against the Borough of Carteret or the Carteret Police Department
Finally, the Carteret Defendants argue that Plaintiff has not alleged or established the
municipal liability of the Borough of Carteret, and that the Carteret Police Department cannot be
sued independently of the Borough of Carteret, and therefore, these Defendants are entitled to
summary judgment. (ECF No. 24-3, Carteret Defendants’ Brief at 21-23.)
15

The Supreme Court has held that

§ 1983 does not impose liability on municipal entities

for the constitutional misconduct of their employees or agents under the doctrine of respondeat
superior.

Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).

Likewise, a

municipal entity is immune from liability for its agent’s actions unless the claimed civil rights
violation resulted from the agent’s execution of that entity’s “policy or custom.” Id. at 694. In
this case, Plaintiff has not alleged or produced a single fact from which a reasonable jury may
conclude that the Borough of Carteret has a policy or custom of encouraging or condoning false
arrests, tampering with evidence misconduct, or malicious prosecutions by police officers.
Moreover, this Court has determined that all of Plaintiff’s claims against the individual Carteret
Defendants, such as Defendants Reyes, Dammann and the other Carteret police officers, lack
merit and must be dismissed. Thus, because no claim against the individual Carteret police
officers survives, Plaintiff cannot maintain claims against the Borough of Carteret. See McCann
v. Borough of Magnolia, 581 F. App’x 125 (3d Cir. 2014) (citing Williams v. West Chester, 891

F.2d 458, 467 (3d Cir. 1989) (stating that “West Chester cannot be vicariously liable

...

unless

one of West Chester’s employees is primarily liable under section 1983 itself”). Therefore,
summary judgment will be granted in favor of the Borough of Carteret.
Likewise, the Carteret Police Department is entitled to summary judgment because under
N.J.S.A.

§ 40A:14-118, a municipal police department is not a separate entity from the

municipality. See Woodyard v. County ofEssex, 514 F. App’x 177, 181 (3d Cir. 2013); see also
Jackson v. City of Erie Police Dept., 570 F. App’x 112, 114 (3d Cir. 2014) (holding that a
municipal police department is not a proper party to a

§ 1983 action because it is a governmental

sub-unit that is not distinct from the municipality of which it is a part).

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IV. CONCLUSION
For the reasons set forth above, the Court grants Defendants’ motion for summary
judgment. The Clerk’s Office is therefore directed to close this matter. An appropriate order
follows.

lOSE NARES
United States District Judge
Dated: [2( &

/iy

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