NEWSOME v. CITY OF NEWARK et al

Filing 39

OPINION/ORDER granting w/out prejudice 12 Motion to Dismiss; that Plaintiff shall have thirty (30) days to submit an amended complaint that remedies, to the extent possible, the pleading deficiencies addressed in this Opinion and Order. Signed by Judge Claire C. Cecchi on 9/25/14. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN NEWSOME,

Civil Action No.: 1 3-cv-06234 (CCC)
Plaintiff,
OPINION & ORDER

V.

CITY OF NEWARK, et al.,
Defendants.
CECCHI, District Judge.
Before the Court is Defendant Paul Sarabando’s motion to dismiss. (ECF No. 12).
Sarabando argues that Plaintiff’s complaint is insufficient to state a claim against him pursuant to
Rule 12(b)(6). The Court decides the motion without oral argument pursuant to Rule 78 of the
Federal Rules of Civil Procedure.’ For the reasons set forth below, the Court will grant
Sarabando’s motion. Plaintiff shall be given thirty days to submit an amended complaint that
cures, to the extent possible, the pleading deficiencies addressed herein.
I.

BACKGROUND
This case arises out of a mistaken identification, leading to Plaintiffs arrest and

prosecution. (ECF No. 1). Due to what Plaintiff alleges was shoddy police work, an assault
victim identified Plaintiff from a two person photo array as his assailant, (Compl. ¶J 2633). As
a result of this identification. Plaintiff was indicted on charges of conspiracy to commit

The Court considers any new arguments not presented by the parties to be waived. See
Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991)
(“It is well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).

aggravated assault, unlawful possession of a weapon, possession of a weapon for an unlawful
purpose, and criminal restraint. (Compl. ¶J 35, 45). However, after Plaintiff’s lawyer and
investigator spoke with the victim, he recanted this identification, and signed a statement that
Plaintiff had not assaulted him. (Compi. ¶j 46-47).
Plaintiff requested that the charges against him be dismissed as a result of the mistaken
identification. (Compl.

¶ 48). The Essex County Prosecutor’s Office requested time to further

investigate the circumstances surrounding the victim’s recantation and assigned Sarabando to the
task. (Compl.

¶J 49,

51).

Plaintiff’s claims against Sarabando arise out of this investigation. Plaintiff claims that
Sarabando disregarded the evidence indicating that Plaintiff was innocent, and instead focused
his efforts on portraying the victim’s recantation as coerced by Plaintiff and Plaintiff’s attorney.
(Compl.

¶J 52,

54). Plaintiff alleges that Sarabando sought to intimidate Plaintiff, the victim, and

the Plaintiff’s lawyer into withdrawing the recantation. (Compl.

¶J 52-54,

79, 81).

In particular, Plaintiff alleges that Sarabando urged the victim to recant the recantation by
warning him that the change would probably result in “serious and undesirable consequences,”
including criminal charges. (Compl.

¶J

52-53, 79). Plaintiff further alleges that during this

interview Sarabando realized that the victim was an unreliable witness, yet did not attempt to
corroborate the victim’s identification of Plaintiff (Compl.

¶ 80). Plaintiff alleges that Sarabando

further threatened Plaintiff’s attorney with disqualification. (Compl.

¶J 52, 81). Plaintiff alleges

that a senior prosecutor with the Essex County Prosecutor’s Office had to step in and order
further investigation. (Compl.

¶

55). After this second investigation, the prosecutor’s office

determined that Plaintiff was innocent of the charges and that the victim’s original identification

of the Plaintiff had been mistaken. (Compl. ¶ 56-57). All charges were dismissed on or about

November 29, 2012. (Compl.

¶ 58).

Plaintiff claims that Sarabando committed malicious prosecution under 42 U.S.C.

§ 1983,

the New Jersey Torts Claim Act, and the common law of New Jersey. (Compi. J 76-82, 89-92).
Sarabando presents four arguments for why the Court should dismiss all the counts against him.
These are: (1) Eleventh Amendment immunity, (2) prosecutorial immunity, (3) qualified
immunity, and (4) failure to state a claim, Sarabando also argues that the
2

§ 1983 claims against

him should be dismissed because he is not a “person” as defined by that statute.
II.

LEGAL STANDARD

For a complaint to survive dismissal pursuant to Rule 1 2(b)(6), it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcrofl
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the
non-moving party.

See Phillips v. Cntv. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

However, the “[fJactual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Furthermore, “[a) pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint
sutiice if it tenders naked assertions devoid of further factual enhancement.”

556 U.S. at

678 (internal citations and quotations omitted). Accordingly. “a complaint must do more than
allege the plaintiffs entitlement to relief A complaint has to ‘show’ such entitlement with its

2

Because the Court finds that the counts against Sarabando are barred by state and
federal prosecutorial immunity, it does not reach S arabando’s arguments regarding Eleventh
Amendment immunity or failure to state a claim.
3

facts.” Fowler v. UPMC Shadyside. 578 F.3d 203, 21 1 (3d Cir. 2009).
III.

DISCUSSION
A.

Sarabando Is Entitled To Prosecutorial Immunity Under Federal Law,

Barring Plaintiffs

§

1983 Claim

Sarabando argues that the claims against him should be dismissed because he is entitled
to absolute prosecutorial immunity. (Mot. 12-1 7)3 Plaintiff argues that under the facts and
circumstances here, prosecutorial immunity is unwarranted.

(Op.

8-12). Under federal law,

prosecutors have absolute immunity from civil liability for their conduct in their role as
prosecutors. Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976). Prosecutorial immunity extends
to employees of a prosecutor, including detectives, “when the employee’s function is closely
allied to the judicial process.” Davis v. Grusemeyer, 996 F.2d 617, 631 (3d Cir. 1993) (citing
Waits v. McGowan, 516 F.2d 203, 206 (3d Cir. 1975)); See also Moore v. Middlesex Cnty.
Prosecutors Office, 503 Fed. App’x 108, 109 (3d Cir. 2012) (“the employee or agent of a
prosecutor, is also granted absolute immunity from

§ 1983 suits where the function of the

employee and the judicial process are closely allied”).
The Supreme Court has held that prosecutorial immunity applies in

§ 1983 cases when

the prosecutor’s conduct is “intimately associated with the judicial phase of the criminal process”
Imbler, 424 U.S. at 430. However, prosecutorial immunity does not apply where the prosecutor’s

actions serve a purely investigative function. See Bums v, Reed, 500 U.S. 478, 493 (1991)
(holding that a prosecutor’s advice to police in regards to interviewing a suspect during the
investigative phase of a criminal case did not qualii for absolute immunity). Buckley v.

Prosecutorial immunity is properly raised as a Rule 12(b)(6) motion. ç Odd v.
Malone, 538 F.3d 202. 207 (3d Cir. 2008).
4

Fitzsimmons, 509 U.S. 259. 275-76 (1993) (denying absolute immunity to a prosecutor who
fabricated evidence prior to an arrest, indictment, or judicial proceeding).
Following these decisions. the application of prosecutorial immunity to

§ 1983 claims

turns on whether the prosecutor’s alleged misconduct served a prosecutorial, investigative or
administrative function. See Buckley, 509 U.S. at 273-74. In this Circuit, this analysis focuses on
the unique facts of each case and avoids bright-line rules that would focus on the timing (pre
indictment versus post-indictment) or location (in court versus out of court) of the alleged
misconduct. Odd, 538 F.3d at 210.
In the absence of bright-line rules, this Court looks to Supreme Court and Third Circuit
precedent for guidance. Interpreting Supreme Court precedent, the Third Circuit has noted
certain guideposts for determining whether conduct serves a prosecutorial, investigative or
administrative function. First, the Third Circuit has held that, although not dispositive, timing is a
relevant consideration to the extent that it defines the function being performed. Id.;

Yarns v.

Cnty. of Delaware, 465 F.3d 129, 138-39 (3d Cir. 2006) (granting prosecutorial immunity where
the misconduct occurred after the decision to indict, but denying immunity where postindictment timing could not be established); See also Kulwicki v. Dawson, 969 F.2d 1454, 1467
(3d Cir. 1992) (denying prosecutorial immunity where a fabricated confession was submitted to
the prosecution after the decision to drop charges had already been made).

Second, courts have held that prosecutorial activities extend to “the preparation necessary
to present a case” and the “obtaining, reviewing, and evaluation of evidence” Schrob v,
Catterson, 948 F.2d 1402. 1414. 1317 (3d Cir. 1991) (citing Imbler, 424 U.S. at 431 n,33,).
Absolute immunity has specifically been applied to witness interviews generating evidence for
judicial proceedings, Rose v. Bartle. 871 F.2d 331. 344 (3d Cir. 1989) (finding that the

solicitation of false testimony for grand jury proceedings is “encompassed within ‘the
preparation necessary to present a case’ and therefore immunized.

. .“);

See also Burns, 500 U.S.

at 489-90 (noting that at common law prosecutors were absolutely immune “for eliciting false
and defamatory testimony from witnesses”).
Third, the Supreme Court has found that decisions regarding how to proceed with a
prosecution serve a prosecutorial. rather than administrative function and thus warrant absolute
immunity. The Supreme Court has held that prosecutors enjoy absolute immunity from civil
damages for their conduct “in initiating a prosecution and presenting the state’s case” Imbler,
424 U.S. at 431. This immunity encompasses decisions to continue a prosecution in light of
conflicting evidence, specifically questionable witness testimony. çç id. at 426 n.24.
Analogous to this case is Davis v. Grusemeyer, where the Third Circuit held that a
detective aiding in the decision whether or not to move forward with the prosecution was
protected by absolute immunity. 996 F.2d 617. In Davis, the indictee sued both the prosecutors
and detective for their efforts to deny him access to PTI (a rehabilitation-focused alternative to
prosecution for first time offenders), and their decision to instead continue with criminal
prosecution. Id. at 627-29. The Court found that the decision to continue a criminal prosecution
through trial “is at the heart of the prosecutorial decision-making process

. .

.“

and should

therefore be immune from civil liability. Id. at 629. Further, the Court held that a detective
performing investigative work in connection with a criminal prosecution receives the same
absolute immunity as would the prosecutor. ij. at 63 U32.
Using these guideposts. the Court finds that Sarabando’s alleged misconduct served a
prosecutorial function and is thus protected by absolute prosecutorial immunity. First, in regards
to timing, Sarabando’s involvement in the prosecution of Plaintiff occurred exclusively after
6

Plaintiff’s indictment and after judicial proceedings had already begun. (Compi. ¶J 45, 48).
Sarabando was first brought onto this case following Plaintiffs request that the charges against
him be dropped. (Compi. ¶ 51). And Sarabando’s alleged misconduct took place nearly a year
after Plaintiffs arrest and eight months after his indictment—well after the prosecutorial stage of
the criminal proceeding had begun. (Cornpl.

¶ 34, 45,

78).

Further, S arabando ‘s assignment was related to the prosecution’s preparation for judicial
proceedings. Following the primary witness’s recantation, the prosecution was potentially left
without its most vital piece of evidence. In preparing to both respond to Plaintiffs request that
charges be dropped and to plan the next stages of the prosecution, Sarabando was tasked with
determining whether or not Plaintiffs request that the charges be dropped, based on the victim’s
recantation, had a valid basis. (Compl.

¶ 51). Courts have found more shocking conduct to serve

a prosecutorial function even when perpetrated in preparation for grand jury hearings, as opposed
to Sarabando’s post-indictment preparation for proceedings at issue here. See Rose, 871 F.2d at
344 (finding immunity for soliciting false testimony before a grand jury).
Lastly, Sarabando s investigation aided in the prosecution’s decision of whether to move
‘

forward with the case. The Essex County Prosecutor’s Office assigned this task to Sarabando in
part, to determine whether or not the prosecution of Plaintiff should continue. (Comp.

¶

77). If

Sarabando had found that the victim’s original identification of Plaintiff had been mistaken, as
the prosecutors later concluded, the prosecution would have likely dismissed the charges at this
point. The Third Circuit has held that decisions on whether to continue a prosecution, and
investigators’ conduct involved in such a decision, serve a prosecutorial function. See Davis. 996
F.2d at 631-32.

Accordingly, the Court finds the timing and nature of Sarabando’s alleged misconduct
7

indicative of a prosecutorial function and thus finds that absolute prosecutorial immunity is
warranted in regards to Plaintiffs
B.

§ 1983 claim.

Sarabando Is Entitled To Prosecutorial And Qualified Immunity Under New

Jersey Law, Barring Plaintiff’s State Law Malicious Prosecution Claim
It is long established under New Jersey law that prosecutorial immunity is not absolute
like its federal counterpart. Cashen v. Spann, 334 A.2d 8, 13 (N.J. 1975) (“Thus it is clear that
New Jersey case law.

.

.

reflects the philosophy that there are indeed circumstances in which a

prosecutor will incur civil liability for his official conduct.” A similar immunity was codified in
the New Jersey Tort Claims Act (‘NJTCA”), N.J.S.A. 59:3-8, in 1972. Van Engelen v. O’Ly,

732 A.2d 540, 546 n.3 (N.J. Super. Ct. App. Div. 1999).
The NJTCA’s prosecutorial immunity provision states: “A public employee is not liable
for injury caused by his instituting or prosecuting any judicial or administrative proceeding
within the scope of his employment.” N.J.S.A. 59:3-8. However, the NJTCA limits this
prosecutorial immunity: “Nothing in this act shall exonerate a public employee from liability if it
is established that his conduct was outside the scope of his employment or constituted a crime,
actual fraud, actual malice or willful misconduct.” N.J.S.A. 59:3-14a; See also Stolinksi v.
icer, No. 07-3174, 2008 WL 5136945, at *5.6 (D,N.J. Dec. 4, 2008) (denying

prosecutorial immunity where Plaintiffs malicious prosecution claims were premised on malice
or misconduct). Van Engciçn, 732 A.2d at 546 (wanting prosecutorial immunity where
Plaintiffs claims could not support a rational conclusion that Defendants committed fraud.
malice, or misconduct).
The NJTCA also provides a similar qualified immunity to all public officials: “A public
employee is not liable if he acts in good faith in the execution or enforcement of any law,”
S

except in instances of false arrest or false imprisonment. N.J.S.A. 59:3-3. In analyzing this
provision, New Jersey courts have adopted the objective good-faith standard announced by the
Supreme Court in Harlow v. Fitzgerald. 457 U.S. 800, 817-18 (1982); See Hayes v. Mercer
Cnty., 526 A.2d 737, 741 (N.J. Super. Ct. App. Div. 1987). The Harlow standard shields officials
performing discretionary functions from bare allegations of malice when their conduct does not
“violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow, 457 U.S. at 817-18.
The Court finds that Sarabando is entitled to both prosecutorial and qualified immunity
under New Jersey law. Accepting Plaintiffs well-pleaded factual allegations as true, this Court
cannot find that Sarabando’s conduct constituted any of the exceptions to prosecutorial immunity
enumerated in N.J.S.A. 59:3-l4a nor constituted bad faith in violation of N.J.S.A. 59:3-3.
Plaintiff points to the statements Sarabando made to the witness threatening him with
prosecution as rising above this bar.

(op.

13; Compl.

¶J 52-53, 79-81). Further, Plaintiff alleges

that Sarabando threatened Plaintiffs attorney with possible disqualification (Compi.

¶J 52, 81).

However, even drawing all factual inferences for Plaintiff, the Court disaees. It is rational for
an investigator to be skeptical regarding the motives behind a witnesses’ recantation, particularly
where Plaintiffs agents secured the recantation, Van Engelen, 732 A.2d at 548 (quoting State v.
Hogan, 676 A.2d 533. 544 (N.J. 1996)) (“Partly because recantations are often induced by duress
or coercion

.

-

.

the sincerity of a recantation is to be viewed with extreme suspicion”). Given

this skepticism. it was also reasonable for Sarabando to warn the witness of the serious
consequences that result from giving false testimony. In light of these circumstances, and
considering the fact that Plaintiff was under an indictment, without allegation that Sarabando
knew at the time of his investigation that the Plaintiff had not committed the crime, this Court
9

cannot find that Sarabando’s conduct falls outside NJ.S.A. 59:3-S’s safe harbor. See Drisco v.
City of Elizabeth, No. 03-397, 2010 WE 1253890. at *12l3 (D.N.J. Mar. 23, 2010) (finding that
officials who continued a prosecution after the recantation of eyewitness testimony did not
violate any of the N.J.S.A. 59:3-14a exceptions to prosecutorial immunity).
For the same reasons, this Court cannot find that Sarabando acted in bad faith. Although
Sarabando and the Essex County Prosecutor’s Office were ultimately mistaken, as discussed
above, at the time of the alleged misconduct Sarabando’ s actions during the investigation were
reasonable under the facts alleged. See Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citing
Malley v. Briggs, 475 U.S. 335, 343 (1986)) (“The qualified immunity standard ‘gives ample
room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who
knowingly violate the law”).
Accordingly, the Court finds that Sarabando is entitled to both prosecutorial and qualified
immunity under New Jersey law as it pertains to Plaintiff’s state law claim for malicious
prosecution.
IV.

CONCLUSION

For the foregoing reasons, it is on this2 of
day
5

C
3

,

2014:

ORDERED that Sarabando’s motion to dismiss is GRANTED: and it is further
ORDERED that Plaintiffs claims against Sarabando are dismissed without prejudice;
and it is further

ORDRED that Plaintiff shall have thirty (30) days to submit an amended complaint that
remedies, to the extent possible. the pleading deficiencies addressed in this Opinion and Order.

CLAIRE C. CECCHI, U.S.D.J.

i0