CRESCI et al v. AQUINO et al

Filing 60

OPINION. Signed by Judge Kevin McNulty on 4/10/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PETER J. CRESCI, et al.,

Civ. No. 13-4695 (KM) (JBC)
Plaintiffs,
OPINION
V.

JOARRIE AQUINO, Individually,
MICHAEL A. SIGNORILE, JR.,
Individually, COUNTY OF HUDSON;
and John Does 1-4,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Under the New Jersey Rules of Court, a “complaint-warrant” may be
issued if there is probable cause to believe a person has committed or is
committing a serious offense. For other, relatively less serious offenses, a
“summons-complaint” is issued. A complaint-warrant may furnish the basis for
an arrest; a summons-complaint is a notice to appear. In June 2013, a New
Jersey municipal court judge found probable cause to believe that the plaintiff
here, Peter Cresci, committed two third degree offenses—crimes that would
ordinarily call for a summons-complaint. But the judge issued a warrantcomplaint instead, so he was arrested. That procedural irregularity, Cresci
claims, violated his constitutional rights.
Cresci brings this action against the arresting officers, Detectives
Joarrie Aquino and Michael Signorile, Jr., as well as the County of Hudson (the
“County”), alleging violations of his First, Fourth, Fifth, and Fourteenth
Amendment rights. He also asserts a potpourri of state law torts, including
battery, assault, intentional and negligent infliction of emotional distress, and
unlawful interference with prospective economic advantage. Defendants move

1

to dismiss the complaint on grounds of sovereign and qualified immunity. In
the alternative, they move to dismiss the complaint for failure to state a claim.
For the reasons stated herein, the motions will be GRANTED.
I.

BACKGROUND
Cresci is an attorney.’ He suggests that the County is hostile to him,

because he has sued the County on several occasions. He also represented
County employees during a successful unionization drive, and has “cooperated
in several investigations regarding County of Hudson administrators, including
the Hudson County Sheriff’s Hatch Act violations.” (Compi.

¶

43).

“[B]ased on the review of financial records & court documents, and a
sworn statement of the victim,” on June 10, 2013, Signorile swore under oath
that there was probable cause to believe Cresci had committed third degree
2
theft and forgery. A municipal judge agreed, and issued a warrant-complaint.
Cresci was arrested later that day. At the time, Cresci was conducting a
medical malpractice trial in New Jersey state court. Signorile handcuffed Cresci
from behind, allegedly injuring him in some manner. Signorile and Aquino then
“Perp Walked” Cresci though the courthouse and outside. (ECF No. 41-6;
Compl.

¶f

8-9, 25-26)

The Court ordinarily affords pro se filings considerable leeway. Niblack v.
Murray, No. CV12691OMASTJB, 2016 WL 4086775, at *1 n.1 (D.N.J. July 29, 2016)
(citing Pratt v. Port Auth. of N. Y. & N.J, 563 F. App’x 132, 134 (3d Cir. 2014)
(“[Bjecause [the plaintiff] is proceeding pro Se, we will construe his brief liberally.”). Not
so here. Cresci is an attorney. See Kenny v. United States, No. CIV 08—3921 GEB,
2009 WL 276511, at *8 (D.N.J. Feb. 5, 2009) (Brown, C.J.) (“[T]his prose Plaintiff is an
attorney, and therefore, has substantial legal training and professional experience,
undermining the rationale set forth by the Supreme Court in Haines v. Kemer, 404
U.S. 519,92 S. Ct. 594,30 L. Ed. 2d 652 (1972).”) (citing Allen v. Aytch, 535 F.2d 817,
821 n. 21 (3d Cir. 1976) (stating that a third year law student who drafted a complaint
had “substantial legal training” and therefore declining to construe the complaint
liberally)). Cresci has not asked for—nor would he be entitled to—such leeway, so I
construe the papers under the usual standards.
1

Defendants have submitted the complaint-warrant in connection with their
papers. I consider it because it is “integral to” and “explicitly relied upon in the
complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

2

2

Cresci was taken by Signorile and Aquino to the Hudson County
Prosecutor’s Office (“HCPO”). There, Aquino inventoried Cresci’s personal
effects. At his initial appearance, the municipal judge declined to release him
on his own recognizance, and set bail. Cresci was remanded to custody.
Although he invoked his right to counsel, he was not allowed to meet with a
lawyer. He was not provided with food or drink for the first 10 hours of
imprisonment. He did not receive medical attention for the unspecified injury
he suffered incident to arrest. Before posting bail and being released, he spent
about 25 hours in jail. (Compl. ¶j 9-12, 16)
On July 25, 2013, a New Jersey grand jury returned a true bill
against Cresci for the crimes of third degree theft and forgery. (ECF No. 41-7)3
On August 5, 2013, Cresci filed this complaint. It primarily asserts
five lettered causes of action:
A. False arrest: violations of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983;
B. Excessive force: violations of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983;
C. False imprisonment: violations of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983;
D. Abuse of process; and
E. First Amendment Retaliation under 42 U.S.C.

§ 1983.

District Judge Faith S. Hochberg administratively terminated the case
on April 7, 2014, pending resolution of the underlying criminal proceedings.

Defendants have submitted a copy of the indictment with their papers. I
consider it because it is “integral to” Cresci’s false arrest and imprisonment claims,
which depend on the existence (or not) of probable cause. Schmidt, 770 F.3d 241 at
249. It is also an undisputedly authentic, publicly-available document originating
within this court’s territorial jurisdiction. See S. Cross Overseas Agencies, Inc. v. Wah
Kwong Shipping G?p. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999); see generally Fed. R.
Evid. 201.

3

Two years later, on June 2, 2016, Cresci represented that the “underlying
[criminal] action has been resolved.” Judge Hochberg having retired in the
4
interim, this civil case was reassigned to me, and I reopened it. (ECF Nos. 1,
30, 34, 35, 37)
On August 31, 2016, Aquino and Signorile filed a renewed motion to
dismiss. On October 4, 2016, Hudson County filed a “cross-motion” to dismiss,
essentially adopting the arguments and reasoning of Aquino and Signorile’s
motion. (ECF Nos. 41, 47)
II.

STANDARD OF REVIEW
A motion 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.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges may be
either facial or factual attacks. See 2 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. “In reviewing a facial attack, the court
must only consider the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the plaintiff.”
Lincoln Ben. Ltfe Co. v. AEILtfe, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).

Apparently Cresci pled guilty to falsifying records in exchange for dismissal of
the theft and forgery charges. (ECF No. 41-8; Def. Br. 3) In support, defendants have
submitted a plea form, which defendants have certified is Cresci’s. The document,
however, is largely illegible. Cresci rather unclearly claims that it has never been
“provided” to him, without actually denying that he filled it out. (P1. Br. 7) So while the
plea form is probably integral to the complaint, there seems to be some question as to
its contents or authenticity. For the reasons stated in Part III.C., infra, this document
is not necessary to resolve these motions to dismiss, so I will not consider it.

4

Defendants have also submitted a second document, a pretrial intervention
order, which has been filed under seal. This one appears to be an authentic court
document, and Cresci does not argue otherwise. Thus I may consider it, but for the
reasons stated in Part III.C., infra, it, too, is not necessary to resolve these motions to
dismiss.

4

In addition, and in the alternative, the motions seek dismissal of the
complaint for failure to state a claim. Fed. R. Civ. P. 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. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a motion to
dismiss, the facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters
& the Trustees Thereof V. Tishman Const. Corp. of New Jersey, 760 F.3d 297,
302 (3d Cir. 2014).
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 formulaic recitation of the elements of a cause of action will
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
West Run Student Housing Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165,
169 (3d Cir. 2013). That facial-plausibility standard is met “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.
III.

DISCUSSION
A.

The County’s “Cross-Motion”
First, some brush-clearing. Cresci takes issue with the County’s

“cross-motion” to dismiss, and asks me to “bar” it. The argument seems to be
that the County has waived its right to assert defenses under Federal Rules of

5

Civil Procedure 12(b)(1) or 12(b)(6) because it has filed an answer. But lack of
subject matter jurisdiction may be raised at any time. Fed. R. Civ. P. 12(h)(3).
And a motion to dismiss for failure to state a claim upon which relief can be
granted may be made as motion for judgment on the pleadings at any time, so
long as trial is not delayed. Fed. R. Civ. P. 12(c), 12(h)(2). The County’s motion
was made well in advance of trial. There is no risk of delay.
Nor is there any procedural disadvantage to Cresci. The County’s
motion is not really a “cross-motion” at all, but merely a joining-in and
adoption of the arguments presented in the individual defendants’ motion to
dismiss. Cresci has been afforded, and has taken, the opportunity to respond
5
to both motions. (ECF Nos. 44, 50). I therefore deny Cresci’s request to strike
or bar the County’s motion.
B.

Sovereign Immunity/Section 1983 “Persons”
1.

Eleventh Amendment

Defendants move to dismiss the complaint on jurisdictional grounds,
claiming that they partake of the State’s Eleventh Amendment sovereign
immunity. The Eleventh Amendment to the Constitution 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. Amend. XI. Despite the
limited scope of its wording, the Eleventh Amendment has long been held to
incorporate a more general principle of sovereign immunity that bars citizens
5
Cresci alternatively argues that the County’s motion to dismiss is barred
because it has already filed a motion to dismiss. But this is the County’s first motion
to dismiss; it was the individual defendants who moved to dismiss or stay the case in
2013, before it was administratively terminated. (ECF No. 16) Again, however, subject
matter jurisdiction cannot be waived, and a 12(b)(6) motion may be brought as a
motion for judgment as pleadings under Rule 12(c) provided it doesn’t delay trial.
Indeed, motions asserting grounds under Rule 12(b)(1) or 12(b)(6) are specifically
excepted from the Rule’s ban on successive motions. Fed. R. Civ. P. Rule 12(g), 12
(h)(2) & (3).

6

from bringing suit against any state in federal court. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89 (1984). The Eleventh Amendment, as a bar
to suit, is of jurisdictional stature. Id. at 98 (citing Hans v. Louisiana, 134 U.S.
1 (1980)).
Cresci’s federal-law claims are brought under 42 U.S.C.

§ 1983.

Although Congress may in some circumstances override a state’s sovereign
immunity, it did not do so when it enacted section 1983. Quern v. Jordan, 440
U.S. 332, 342 (1979). Monetary claims for deprivations of civil rights under
section 1983 are therefore subject to the Eleventh Amendment sovereign
immunity bar. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 58 (1989).
That bar applies to state common law causes of action as well. See College
Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d
353, 355 n. 1 (3d Cir. 1997), affd, 527 U.S. 666 (noting that a claim of common
law unfair competition “obviously could not be asserted successfully [against
instrumentality of the statel in light of the Eleventh Amendment”); Doe v. Div. of
Youth & Family Serus., 148 F. Supp. 2d 462, 492 (D.N.J. 2001) (claim of
common law negligence was barred by the Eleventh Amendment).
Aquino and Signorile, however, are not themselves the State. They are
not sued in their official capacities as County (let alone State) employees, but
rather in their individual capacities. Hafer v. Melo, 502 U.S. 21, 27 (1991)
(“[O]fficers sued in their personal capacity come to court as individuals.”);
Scheuer v. Rhodes, 416 U.S. 232, 238 (1977) (“[D]amages against individual
defendants are a permissible remedy in some circumstances notwithstanding
the fact that they hold public office.”).
Nor is the County identical to the State. See Lake Country Estates, Inc.
v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979) (“[T]he Court has
consistently refused to construe the [Eleventh] Amendment to afford protection
to political subdivisions such as counties and municipalities even though such
entities exercise a ‘slice of state power.”); accord Mt. Healthy City School Dist.

7

Bd. Educ. v. Doyle, 429 U.S. 274, 280 (1977); Kovats v. Rutgers, The State
Univ., 822 F’.2d 1303, 1307 (3d Cir. 1987).
If defendants are to enjoy the State’s sovereign immunity, then, it
must be because the State is the “real party in interest” here. Haybarger v.
Lawrence Cty. Adult Probation and Parole, 551 F.3d 193, 198 (3d Cir. 2008);
Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239 (3d Cir. 2005) (citing
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). In determining
whether the State is the real party in interest, the courts are to consider three
factors: (1) whether the source of the money to pay a judgment would be the
State treasury, (2) the status of the defendant entity under State law, and (3)
the defendant entity’s degree of autonomy. Fitchik v. N.J. Transit Rail Ops., Inc.,
873 F.2d 655, 659 (3d Cir. 1989). The burden of establishing immunity rests
on the party asserting it. Chisolm v. McManimon, 275 F’.3d 315, 323 (3d Cir.
2001).
Aquino and Signorile say that they meet the Fitchik test because the
6
State is required by law to indemnify HPCO, their employer. It is true that
County prosecutors have been held to act as agents of the state when
performing core law enforcement and prosecutorial functions. See Wright v.
State, 169 N.J. 422, 453, 778 A.2d 443 (2001); Coleman v. Caye, 87 F.3d 1491,
1499 (3d Cir. 1996). HCPO is not a named defendant, however, and Cresci
seeks to recover damages from Aquino and Signorile in their personal, not
official, capacities. The State’s voluntary decision to indemnify Aquino and
Signorile does not transform them into agents of the State. As noted above,
even as to an actual State employee, who surely would have a stronger claim
for indemnification, the Eleventh Amendment would not bar a personal
capacity suit. Hafer, 502 U.S. at 27; Scheuer, 416 U.S. at 238. Indemnification
would not “transform a personal-capacity action against a state official into an

Presumably, they mean to imply that HCPO would indemnify them in turn. The
State Attorney General is representing Aquino and Signorile in these proceedings.
Aquino and Signorile have not addressed the other two Fitchik factors.

6

8

official-capacity action against the state.” Farid v. Smith, 850 F.2d 917, 923 (2d
Cir. 1988); see also, e.g., Sales v. Grant, 224 F.3d 293, 297-98 (4th Cir. 2000);
Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988); Wilson v. Beebe,
770 F.2d 578, 588 (6th Cir. 1985); Duckworth v. Fran2en, 780 F.2d 645, 65051(7th Cir. 1985). The State cannot throw its cloak of immunity over County
employees by indemnifying them. If that principle were accepted, the State
would have the power to choke off all federal remedies against state officers.
See Wilson, 770 F.2d at 588 (citing Demery v. Kupperman, 735 F.2d 1139,
1146-47 (9th Cir. 1984)). As to Aquino and Signorile, who are sued in their
individual capacities, the motion to dismiss on Eleventh Amendment grounds
is therefore denied.
The County, which relies on the arguments advanced in the individual
defendants’ papers, doesn’t have much to add to support its claim to sovereign
immunity. Counties, as noted above, are presumptively not state entities. The
County does not argue, let alone demonstrate, that any judgment against it will
be paid by the State, that it is legally a surrogate for the State, that it lacks
autonomy, or, more generally, that the State is the real party in interest here.
The County’s motion to dismiss on Eleventh Amendment grounds is denied.
2.

“Persons” under section 1983

As to section 1983, there is another issue that is customarily analyzed
together with Eleventh Amendment immunity, but is distinct. I refer to the
issue of who or what is a suable “person” under section 1983.
Counts A, B, C, and E of the complaint (false arrest, excessive force,
false imprisonment, and First Amendment retaliation) seek damages under 42
U.S.C.

§ 1983. Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges
or immunities secured by the Constitution and laws, shall be

9

liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
42 U.S.C.

§ 1983 (emphasis added).

A state and its departments are not “persons” amenable to suit under
section 1983. Will, 491 U.S. at 67-70. Also barred are section 1983 suits for
damages against “governmental entities that are considered ‘arms of the state’
for Eleventh Amendment purposes,” which are “no different from a suit against
the State itself.” Id. at 70-7 1.
State officials, sued in their official capacities, are likewise considered
to be part of the State, and are not “persons” subject to a damages suit under
section 1983. A section 1983 claim may be brought against them, however, in
their individual capacities. Id. at 71 n. 10; Kentucky v. Graham, 473 U.S. 159,
167 n.14 (1985).
Cresci sues Aquino and Signorelli in their individual, not official,
capacities. As individuals, even if employed directly by the State, they would be
“persons” amenable to suit under section 1983. Their motion to dismiss on this
basis is accordingly denied.
As to the County, the issue is a little more complicated. A local
governmental unit is not a liable “person” by virtue of that status. It may
nevertheless be liable for the acts of its employees—not by respondeat superior,
but pursuant to the more demanding test of Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 694 (1978). Cf LaVerdure v. Cty. of Montgomery,
324 F.3d 123, 126 (3d Cir. 2003) (“Municipalities and other bodies of local
government such as Montgomery County are liable under

§ 1983 only if they

have caused a constitutional tort through ‘a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.”) (quoting Monell, 436 U.S. at 690); see also Beck v. City of Pittsburgh,
89 F.3d 966, 971 (3d Cir. 1996) (plaintiff must show that “the alleged
constitutional transgression implements or executes a policy, regulation, or

10

decision officially adopted by the governing body or informally adopted by
custom.”).
Cresci alleges that the County—a litigation adversary and presumed
opponent of public employee unions—was hostile to him. (Compi.

¶J

42-48).

But there is no factual, non-speculative allegation that the County was directly
involved in these events, or that they resulted from any County policy or
custom of skirting New Jersey’s summons/warrant procedure. The words
“policy” and “custom” appear in the complaint here and there, but only
generally. (Compi.

¶J

21-22, 46) The specifics of any particular policy or

custom are not specified. There are no factual, non-conclusory allegations
suggesting knowledge, a pattern of incidents, or the County’s explicit or tacit
communication or approval of the conduct alleged. See McTeman v. City of New
York, 564 F.3d 636, 658-59 (3d Cir. 2009).
In sum, the motion of Aquino and Signorile to dismiss the complaint
on Eleventh Amendment and section 1983 “person” grounds is denied. The
County’s motion to dismiss on Eleventh Amendment grounds is denied
because it has made no demonstration that it acts as an arm of the State. The
County’s motion to dismiss the section 1983 claims because there is no
7
sufficient allegation that it is a “person” subject to suit is granted.
C.

Rule 12(b)(6) Motion: Federal Constitutional Claims
As to the federal constitutional claims against Aquino and Signorile

that have survived that threshold analysis, I consider the motions to dismiss
for failure to state a claim. For the reasons set forth below, none of the
remaining federal claims survive Rule 12(b)(6) scrutiny.

7
I address the issue of the County’s amenability to suit because it is prior to the
merits. It may make little practical difference, however. If the County is to be liable, it
must be by virtue of the actions of its employees, Aquino and Signorile. But for the
reasons expressed in the following sections, those actions, even if violative of State
procedure, give rise to no viable federal Constitutional claim.

11

1.

Qualified immunity

Qualified immunity protects government officials from insubstantial
claims in order to “shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231(2009). “When properly applied, it protects ‘all but the plainly incompetent
or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome
qualified immunity, a plaintiff must plead facts “showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Id. at 735. “A Government
official’s conduct violates clearly established law when, at the time of the
challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would [have understood] that what he is doing violates that
right. “ Id. at 741 (alterations in original) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). The Court has discretion to analyze the steps in either
order. Pearson, at 236 (partially overruling Saucier v. Katz, 533 U.S. 194, 201
(2001)).
Cresci brings section 1983 claims under the First, Fourth, and
Fourteenth Amendments. Each fails the qualified immunity test, not merely
because the underlying Constitutional right is not clearly established, but
because there is no viable federal Constitutional claim at all.
i.

Fourth Amendment

The crux of this lawsuit is that Cresci was unconstitutionally arrested
and imprisoned pursuant to a procedurally improper warrant. It therefore
makes sense to start with the Fourth Amendment claims. The New Jersey
Court Rules distinguish between arrest warrants and summonses. See N.J. Ct.
R. 3:3-1. For all but serious crimes a summons is presumptively appropriate.
Id. R. 3:3-1(c) & (d); see also Fields v. City of Salem Police Dep’t, Civil No. 14-

12

1849, 2015 U.S. Dist LEXIS 13129, at *89 (Feb. 2, 2015) (discussing
distinction between arrest summons and warrant) 8 Although Cresci was
alleged to have committed two relatively non-serious crimes, Signorile obtained
a complaint-warrant instead of a complaint-summons from a judge. The failure
to observe the proper summons/warrant procedure, says Cresci, meant that he
was arrested when he should have been served with a summons to appear.
Cresci’s analysis of New Jersey law is correct as far as it goes. Under
New Jersey procedure, a summons-complaint is usually appropriate for the
sorts of crimes Cresci allegedly committed. But “even if a police officer erred in
issuing a complaint-warrant, that ‘does not constitute a per se violation of
plaintiff’s constitutional rights.”’ Conner v. Powell, 162 N.J. 397, 410-11 (2000)
(citing Sanducci v. City of Hoboken, 315 N.J. Super. 475, 485 (App. Div. 1998)
(quoting O’Brien v. Borough of Woodbury Heights, 679 F. Supp. 429, 437
(D.N.J. 1988))); accord Fields, 2015 U.S. Dist. LEXIS 13129 at *8g; Paskowski
u. Roxbury Twp. Police Dep’t, Civ. No. 13-7088 (FSH), 2014 U.S. Dist. LEXIS
11675, at *1415 (D.N.J. Jan. 30, 2014); Lesende v. Borrero, Civ. No. 06-4967,
2011 U.S. Dist. LEXIS 59533, at*1112 (D.N.J. June 3, 2011).
Noncompliance with State procedures is a relevant fact. To make out
a constitutional claim, however, Cresci must show that the arrest was not
supported by probable cause. E.g., Groman v. Twp. of Manalapan, 47 F.3d 628,
634-37 (3d Cir. 1995) (ruling that plaintiff must demonstrate lack of probable
cause to prevail on section 1983 false arrest and imprisonment claims); see
also Connor 162 N.J. at 411 (noting that procedural compliance with the New
Jersey Court Rules is “a factor that must be considered in determining whether
the police officers had probable cause or whether they reasonably believed that
probable cause existed.”) He has not done so here.

There are of course exceptions to this general rule. See N.J. Ct. R. 3:3-1(d) But
there is no evidence that any were invoked at the time Signorile obtained the
complaint-warrant from the municipal judge.

8

13

Cresci concedes that Signorile attested, and a municipal judge found,
probable cause that he had committed third degree theft and forgery prior to
his arrest. (Comp.

¶ 25) A warrant from a “neutral magistrate is the clearest

indication that the officers acted in an objectively reasonable manner.”
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012). Based on the facts and
circumstances known to Signorile (who swore that there was probable cause
based on an examination of specific evidence) and Aquino (who assisted in the
arrest pursuant to a warrant issued by a judge), surely a reasonably competent
9
officer would have concluded that there was probable cause for the arrest. Id.
Those reasonable beliefs are corroborated by subsequent events.
Cresci was not released on his own recognizance but instead ordered by the
judge to post bail. (Compi.

¶J 14-15) He was later indicted by a grand jury on

the same theft and forgery charges for which he was arrested. That grand jury
indictment, even standing alone, nearly conclusively establishes probable
cause. See Trabal v. Wells Fargo Armored Seru. Corp., 269 F.3d 243, 251 (3d
Cir. 2001).’°

Cresci alleges in conclusory fashion that Signorile and Aquinio “did not have
knowledge or reasonably trustworthy facts and circumstances that would have led to
the issuance of an Arrest Warrant for alleged third degree offenses” and that it was not
objectively reasonable for the defendants “to believe they could arrest Plaintiff under a
Third Degree complaint.” (Compi. ¶J 19-20) Whether an arrest was “reasonable” under
State procedures, however, is different from reasonableness under the Fourth
Amendment. Where, as here, the arrest is supported by a judicial fmding of probable
cause, the legally conclusory language of this complaint does not suffice to allege a
violation of a constitutional right.
10
Technically, a valid indictment could be returned based on evidence obtained
after an invalid arrest. No such allegation is made here, however. There is also no
allegation that the grand jury indictment was corrupted by fraud, perjury, or some
other irregularity. See Dorn v. Ati. City Police Dep’t, Civ. No. 14-344 1 (NLH), 2015 U.S.
This prima facie
Dist. 63044, at *9 (D.N.J. May 13, 2015) (“At the pleadings stage.
that the presentment was
evidence [of probable cause] may be rebutted by [allegations]
procured by fraud, perjury, or other corrupt means.”) (quoting Rose v. Bartle, 871 F.2d
331, 353-54 (3d Cir. 1989) (alterations in original)).
.

14

.

In short, Cresci’s claims of unlawful arrest and false arrest cannot be
sustained as to Aquino and Signorile. Those claims are therefore dismissed on
qualified immunity grounds.
Cresci also claims that he was subjected to excessive force. Even a
valid arrest may be carried out in an unlawful manner. Therefore, unlike a
false arrest claim, an excessive force claim is not necessarily defeated by a
showing of probable cause. See Groman, 47 F.3d at 633-35. Excessive force
claims in the context of arrests are analyzed under the Fourth Amendment’s
“objective reasonableness” standard. Id. at 633-34; Graham v. Connor, 490 U.s.
386, 395-96 (1989). Reasonableness is measured by “careful attention to the
facts and circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Id. at 396.
The complaint is virtually silent as to amount of force used in
connection with Cresci’s arrest. As to Aquino, there no factual allegations at all.
As to Signorile, the complaint alleges nothing beyond the routine use of force.
(Compl.

¶

26 (“Defendant Signorile cuffed Plaintiff from behind, while detaining

Plaintiff and arresting him.”)) Cresci does not allege, for example, that
complaints about the tightness of the handcuffs went unacknowledged, or that
he was unreasonably pushed or shoved. See Burchett v. Kiefer, 310 F.3d 937,
944-45 (6th Cir. 2002). Cresci, to be sure, avers generally that he was
somehow injured and that his injury is documented in County medical records.
But nowhere does he actually identify what that injury was or connect it to any
act by Signorile.”

It is not clear why Cresci would not have access to his own medical records.
Either way, though, he should be able to describe and allege his own injury, if it
occurred.

15

The complaint, in sum, does not allege that Signorile or Aquino
subjected Cresci to an unreasonable amount of force in the course of arresting
him. The excessive force claim under section 1983 is therefore dismissed.
ii.

Fifth/Fourteenth Amendment

Cresci next contends that he was deprived of his Fifth and Fourteenth
Amendment rights. (Because Aquino and Signorile are state, not federal,
officials, I interpret these claims as arising under the Fourteenth Amendment.)
The complaint contains no allegations specific to Fourteenth Amendment
rights. This claim, in other words, is no more than a recasting of the Fourth
Amendment claims I have already rejected. Such arrest-related claims,
however, are to be analyzed under the Fourth Amendment, not under more
generalized due process standards. See, e.g., Aibright v. Oliver, 510 U.S. 266,
273 (1994) (“Where a particular Amendment provides an explicit textual source
of constitutional protection against a particular sort of governmental behavior,
that Amendment, nor the more generalized notion of substantive due process,
must be the guide for analyzing these claims.”) (internal quotation marks and
citation omitted); Graham v. Connor, 490 U.S. 386, 393—94 (1989) (excessive
force claim in connection with arrest must be analyzed under Fourth
Amendment standards, not a generic due process standard). To the extent
Cresci’s Fourteenth Amendment claim is simply an alternative legal basis for
his false arrest, false imprisonment, and excessive force claims, it must be
dismissed.
Without alleging that he ever actually asked for these services, Cresci
says that after his arrest he was denied food and water for ten hours, and did
not receive medical treatment. (Compl.

¶J

16, 22) The complaint might thus be

read as asserting a distinct conditions-of-confinement claim under the
substantive due process clause of the Fourteenth Amendment. (Compl.

¶J

4,

33, 39); see Schneyder v. Smith, 653 F.3d 313, 320 (3d Cir. 2011) (“[A] detainee
may not be punished prior to an adjudication of guilt in accordance with due

16

process of law.”) (quoting Bell v. Wofish, 441 U.S. 520, 535 (1979) (alteration in
original)).
“Not every disability imposed during pretrial detention amounts to
‘punishment’ in the constitutional sense, however.” Bell, 441 U.S. at 537. The
Fourteenth Amendment requires that committed persons not be subjected to
conditions that amount to punishment, id. at 536, or exceed the proper bounds
of professional discretion, see Youngberg v. Romero, 457 U.S. 307, 32 1-22
(1982); see also Southerlanci v. Cnty. of Hudson, 523 F. App’x 919, 921 (3d Cir.
2013).
To constitute punishment, a deprivation must be both serious and
intentional:
Unconstitutional punishment typically includes both objective and
subjective components. As the Supreme Court explained in Wilson
v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991),
the objective component requires an inquiry into whether “the
deprivation [was] sufficiently serious” and the subjective
component asks whether “the officials act[ed] with a sufficiently
culpable state of mind.” Id. at 298, 111 S. Ct. 2321. The Supreme
Court did not abandon this bipartite analysis in Bell, but rather
allowed for an inference of mens rea where the restriction is
arbitrary or purposeless, or where the restriction is excessive, even
if it would accomplish a legitimate governmental objective.
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (citing Bell, 441 U.S. at
538-39 & n. 20). As to the “objective component,” the court must consider
“whether these conditions ‘cause inmates to endure such genuine privations
and hardship over an extended period of time,’ that the adverse conditions
become excessive in relation to the purposes assigned to them.” Hubbard v.
Taylor (Hubbard Ii), 538 F.3d 229, 233 (3d Cir. 2008) (analyzing pretrial
detention under due process standard).
There are no allegations that these conditions were meant to punish
Cresci or that they did constitute punishment under the circumstances. Id. at
538-39. The entire duration of confinement was approximately 25 hours. The

17

ten hours during which food and water were “denied,” even if not ideal, do not
approach the inhumane or torturous. Nor does it allege anything specific
12
about the alleged injuries, or state that they were so serious that treatment was
required, or could not wait for one day.
Aquino or Signorile, moreover, are not alleged to have played any role
in, or even to have had knowledge of, any denial of food, water, or medical care.
Davis v. Burlington Cnty. Dep’t of Corr., Civ. No. 16-1661 (NLH), 2016 U.S. Dist.
LEXIS 100174, at *8 (D.N.J. August 1, 2016) (“[T]he Third Circuit has
consistently held that a plaintiff must demonstrate a defendant’s personal
involvement in the alleged wrongs in order to set forth a claim under

§ 1983.”)

(quoting Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015)
(internal quotation marks omitted)).
For these reasons, Cresci has failed to plead a violation of any
substantive due process right. The Fifth/Fourteenth Amendment claims are
dismissed.
iii.

First Amendment Retaliation

The First Amendment retaliation claim adds some context to the nowdismissed Fourth and Fourteenth Amendment claims, but it fails for basically
the same reason. Here, Cresci alleges the same acts, but adds an allegation of
unconstitutional motive: His arrest, he says, constituted retaliation for
“representing clients, and representing union(s)” adverse to the County’s
interests, and was an attempt “to discourage those who challenge” the County
or seek to “cast [it] in a negative light.” (Id.

¶J 44, 46)

The only actions specifically alleged are those of Aquino and Signorile.
Nothing on the face of the complaint establishes that they were part of the
County’s scheme to discourage attorneys from representing clients who want to

The complaint does not specify whether this ten hour period encompassed the
hours of sleep.
12

18

sue the County or public employees wishing to form a union.’ Even if such a
3
claim were asserted, however, it would fail.
“To plead retaliation for the exercise of First Amendment rights, a
plaintiff must allege ‘(1) constitutionally protected conduct, (2) retaliatory
action sufficient to deter a person of ordinary fitness from exercising his
constitutional rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.” Mirabella v. Villard, No. 15-3 171,
2017 U.S. App. LEXIS 5780, at *8 (3d Cir. Apr. 4, 2017) (quoting Thomas v.
Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)). The First Amendment protects
access to the courts, e.g., Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997),
as well as an individual’s right to speak on matters of public or social concern,
see, e.g., Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001). And it
prohibits retaliation by public officials for the exercise of these rights.
Mirabella, 2017 U.S. App. LEXIS 5780, at *8. For the purposes of argument, we
may assume that the complaint states a prima facie claim for First Amendment
retaliation. Even so, Aquino and Signorile would still be entitled to qualified
immunity because such a First Amendment right was not clearly established at
the time of his arrest.
The Supreme Court has “never recognized a First Amendment right to
be free from a retaliatory arrest that is supported by probable cause.” Reichie v.
Howards, 132 S. Ct. 2088, 2093 (2012). Reichie involved the scope of a
previous decision, Hartman v. Moore, 547 U.S. 250 (2006), which held that
probable cause precludes a retaliatory prosecution claim. Hartman, 547 U.S. at
252 (holding that for a claim of prosecution in retaliation for exercise of First
Amendment rights, “want of probable cause must be alleged and proven”).
Reichle did not explicitly resolve whether probable cause always negates a
retaliatory arrest claim; it merely held that a such a First Amendment right, if
any, was not clearly established at that time of the arrest at issue in that case.

13

Cresci contends otherwise in his motion papers, however. (P1. Br. 14-16)

19

Id. at 2095-97. For qualified immunity purposes, it did not need to go farther
than that.
The contours of that right have become no clearer since Reichie was
decided. Indeed, one month after Cresci’s arrest, in July 2013, the Third
Circuit noted that it had “not decided whether the logic of Hartman applies to
retaliatory arrest claims, and so it appears that [the officer in that case] would
be entitled to qualified immunity on the First Amendment claim.” Primrose v.
Mellot, 541 F. App’x 177, 180 n.2 (3d Cir. 2013) (emphasis added); see also
George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (“Because we have found
that the individual Federal Officers’ search and questioning.

.

.

did not violate

[plaintiff’s] Fourth Amendment rights, we are hard-pressed to find that it could
result in a First Amendment retaliation claim.”)
It follows, then, that Cresci had no clearly established First
Amendment right to be free from a retaliatory arrest otherwise supported by
probable cause in June 2013. To the extent such a claim is raised against
Aquino and Signorile, it must therefore be dismissed.’
4
D.

State Law Claims
For the reasons expressed above, the complaint contains no viable

federal cause of action. When a court has dismissed all claims over which it
had original federal-question jurisdiction, it has the discretion to decline to
exercise supplemental jurisdiction over the remaining state law claims. See 28
U.S.C.

§ 1367(c); see also Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)

(quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
Because I have now dismissed all federal claims as to all of the defendants, I do
not reach defendants’ argument that Cresci’s section 1983 claims are barred by his
guilty plea or entry into a pre-trial intervention program. See Heck v. Humphrey, 512
U.s. 477 (1994); Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005).
14

I have already found that the County is not a “person” amenable to suit under
section 1983. See Part III.B. 1., supra. As to the County, then, this claim cannot be
sustained. Forced to confront that issue, I would hold substantively that the First
Amendment retaliation doctrine does not extend to an arrest supported by probable
cause, followed by an indictment.

20

Where, as here, the federal claims are dismissed in the early, Rule 12(b)(6)
stages of litigation, courts generally decline to exercise supplemental
jurisdiction over state claims. See United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966). Cresci does not contend that considerations of judicial economy,
convenience, fairness, or comity weigh to the contrary.’
5
I therefore decline to exercise supplemental jurisdiction over Cresci’s
state law claims.
IV.

CONCLUSION
For the reasons set forth above, the defendants’ motions to dismiss

are GRANTED. Because, despite the age of the case, this is a first dismissal, it
is without prejudice to the filing of an amended complaint within 30 days.
A separate Order will issue.
Dated: April 10, 2017

KEVIN MCNULTY
United States District Ju

e

The defendants point out that that there is no allegation that Cresci filed a
notice of claim prior to filing this complaint. See N.J. Stat. Ann. 59:8-3; Velez v. City of
Jersey City, 180 N.J. 284, 294, 850 A.2d 1238 (2004) (New Jersey Tort Claims Act
applies to negligent and intentional conduct).
15

21