PASZKOWSKI v. ROXBURY TOWNSHIP POLICE DEPARTMENT et al

Filing 12

OPINION & ORDER granting deft's 5 Motion to Dismiss, and closing case ***CIVIL CASE TERMINATED. Signed by Judge Faith S. Hochberg on 1/30/2014. (nr, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
:
: Civil Case No. 13-7088 (FSH)
v.
:
: OPINION & ORDER
ROXBURY TOWNSHIP POLICE DEPARTMENT, :
et al.,
: Date: January 30, 2014
:
Defendants.
:
:
:
JOE PASZKOWSKI,

HOCHBERG, District Judge:
This matter comes before the Court upon Defendants’ motion to dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants argue that the
individual defendants are entitled to the defense of qualified immunity and that Plaintiff has
failed to properly plead a claim against the Roxbury Township Police Department under Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). The Court has reviewed the
submissions of the parties and considers the motion pursuant to Federal Rule of Civil Procedure
78.
I.

BACKGROUND 1

On April 29, 2013, Officer John Sylvester executed and issued Complaint-Warrant 2013244. In that warrant, Officer Sylvester alleged that Joe Paszkowski (“Paszkowski” or “Plaintiff”)
did “knowingly and purposely threaten to kill another, specifically by hanging them,” in
1

These facts are taken from Plaintiff’s First Amended Complaint (Dkt. No. 2), unless otherwise
noted.

violation of N.J.S.A. 2C:12-3b, terroristic threats, a third degree crime, by leaving a voicemail on
a telephone answering system. 2
The gravamen of Plaintiff’s complaint is that before Officer Sylvester executed and
issued the warrant against Plaintiff, he listened to the entire recorded voicemail but only
disclosed a portion of the voicemail in his complaint-warrant, his April 30, 2013 Investigation
Report, and his May 13, 2013 Supplementary Investigation Report. 3 According to Plaintiff’s
Amended Complaint, the entire recorded message stated:
I heard Nick is dead, that he committed suicide. I’m going to hang both of
you . . . so bad. I’m coming up to New Jersey. I’m leaving tomorrow
morning and I’m going to . . . have a prosecutor look into the case for
what you did to . . . Nick. You two . . . are going to be both in jail.

2

N.J.S.A. 2C:12-3b, captioned “Terroristic threats,” states:
A person is guilty of a crime of the third degree if he threatens to kill
another with the purpose to put him in imminent fear of death under
circumstances reasonably causing the victim to believe the immediacy of
the threat and the likelihood that it will be carried out.

3

Defendant Sylvester’s Investigation Report, specifically referenced and relied upon in
Plaintiff’s Amended Complaint, also indicates that he met with the victim on April 29, 2013.
The victim noted that she had been receiving threatening voicemails from her father and that she
feared for her life. (Dkt. No. 5-3.) The victim also stated that Plaintiff had also called her
mother and cousin and told them he was going to kill her. (Id.) The victim stated that in a prior
voicemail the Plaintiff stated that “if she . . . does not unblock my number . . . I am coming to
town to kill her. I don’t care about going to jail.” (Id.) The same report indicates that the victim
stated that Plaintiff blamed her for separating from her late husband (the man referenced in
Plaintiff’s voicemail). (Id.) The victim also indicated that Plaintiff owned at least four guns.
(Id.) The victim indicated that she was in fear of her life and advised that Plaintiff was unstable.
(Id.) Thereafter, Defendant Sylvester contacted Assistant Prosecutors Lisa Scorcolini and Tia
Manochio of the Morris County Prosecutor’s Office. (Id.) After realizing that Plaintiff would be
arrested, the victim told Defendant Sylvester that she did not want to pursue criminal charges.
(Id.)
2

(Dkt. No. 2, ¶ 4.) 4 According to the complaint, the complaint-warrant excluded portions of the
message that “clearly negate any threat to kill another by hanging.” (Id., ¶ 5.) The warrant was
reviewed and approved by Lieutenant Timothy Driscoll. Municipal Court Judge Carl Wronko
signed the warrant. 5
On May 8, 2013, members of the Pennsylvania State Police arrested Plaintiff at his home
and incarcerated him in the Warren County, Pennsylvania jail pending extradition to New Jersey.
While incarcerated, Plaintiff suffered an angioedema attack, supraglottic edema, and respiratory
distress.

As a result, Plaintiff was hospitalized.

On August 2, 2013, the Morris County

Prosecutor’s Office presented the criminal charge to the Morris County Grand Jury, which
returned a no bill.
Plaintiff also alleges that the Roxbury Township Police Department negligently hired the
individual defendants, failed to properly train and supervise the individual defendants, and failed
to provide appropriate safeguards to prevent the alleged unlawful conduct. Plaintiff alleges that
as a result of these events, he was subject to unlawful arrest and seizure in violation of the Fourth
and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and the laws
and Constitution of the State of New Jersey.

4

According to Plaintiff’s opposition papers, the full transcript of the voicemail states:
I heard Nick is dead, that he committed suicide. I’m going to hang both of
you fuckers so bad. I’m coming up to New Jersey. I’m leaving tomorrow
morning and I’m going to fucking have a prosecutor look into this case for
what you did to fucking Nick. You two mother fuckers are going to be
both in jail.

(Dkt. No. 8 at 1.) There are no material differences between Plaintiff’s and Defendants’ version
of the voicemail. (Compare Dkt. No. 8 at 1 with Dkt. No. 5-4.)
5

Judge Wronko spoke with Defendant Sylvester and the victim prior to signing the warrant.
(Dkt. No. 5-3.)
3

II.

STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating . . . a claim requires
a complaint with enough factual matter (taken as true) to suggest the required element. This
does not impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part
analysis. “First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations
omitted). “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 suffice if it tenders naked assertions
devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and
alterations omitted).
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings.

However, an exception to the general rule is that a

‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without
converting the motion [to dismiss] into one for summary judgment.’” In re Burlington Coat
4

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal citations omitted) (emphasis in
original). 6
III.

DISCUSSION

Defendants argue that the individual defendants are entitled to the defense of qualified
immunity.
a. The Qualified Immunity Defense
“The Supreme Court has repeatedly stressed the importance of resolving [qualified]
immunity questions at the earliest possible stage of the litigation. Thus, district courts should
move expeditiously to weed out suits . . . without requiring a defendant who rightly claims
qualified immunity to engage in expensive and time-consuming preparation to defend the suit on
the merits. Qualified immunity is not merely a defense, but also an entitlement not to stand trial
or face the other burdens of litigation.” George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013)
(internal citations and quotation marks omitted).
“Qualified immunity shields government officials from personal liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. The doctrine is intended to mitigate the
social costs of exposing government officials to personal liability by giving officials breathing
room to make reasonable but mistaken judgments about open legal questions. Properly applied,
it protects all but the plainly incompetent or those who knowingly violate the law.” Id. at 571-72
(internal citations and quotation marks omitted). “Determining whether a right alleged to have
been violated is so clearly established that any reasonable officer would have known of it must

6

The Court relies on the Complaint-Warrant, the April 30, 2013 Investigation Report, and the
transcripts of the voicemail attached to Defendants’ motion to dismiss and Plaintiff’s opposition
as they are all either integral to or explicitly relied upon in the Amended Complaint.
5

be undertaken in light of the specific context of the case, not as a broad general proposition. In
order for the official to lose the protections of qualified immunity, existing precedent must have
placed the statutory or constitutional question beyond debate.”

Id. (internal citations and

quotation marks omitted).
Therefore, in order to overcome the defense of qualified immunity, Plaintiff must allege
facts that show the conduct of each defendant (1) violated a statutory or constitutional right, and
(2) that the right was “clearly established” at the time of the challenged conduct. Ashcroft v. alKidd, 131 S. Ct. 2074, 2080 (2011). In other words, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right. This is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640
(1987) (internal citations and quotation marks omitted); see also Paff v. Kaltenbach, 204 F.3d
425, 431 (3d Cir. 2000).
“[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner. The Harlow standard is specifically designed to avoid excessive
disruption of government and permit the resolution of many insubstantial claims on summary
judgment, and we believe it sufficiently serves this goal. Defendants will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer would have concluded that
a warrant should issue; but if officers of reasonable competence could disagree on this issue,
immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

6

b. Probable Cause
For Plaintiff to succeed on a § 1983 claim asserting that law enforcement agents
submitted a false affidavit to the issuing judicial officer—whether the alleged falsehood is an
affirmative misrepresentation or material omission—he must prove “(1) that the affiant
knowingly and deliberately, or with a reckless disregard for the truth, made false statements or
omissions that create a falsehood in applying for a warrant; and (2) that such statements or
omissions are material, or necessary, to the finding of probable cause.” Sherwood v. Mulvihill,
113 F.3d 396, 399 (3d Cir. 1997). “[O]missions are made with reckless disregard if an officer
withholds a fact in his ken that ‘[a]ny reasonable person would have known . . . was the kind of
thing the judge would wish to know.’” 7 Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)
(citing United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)). “To determine the
materiality of the misstatements and omissions, we excise the offending inaccuracies and insert
the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit
would establish probable cause.” Id. at 789; see also Badillo v. Stopko, 519 F. App’x 100, 105
(3d Cir. 2013).
“The proper inquiry in a section 1983 claim based on false arrest or misuse of the
criminal process is not whether the person arrested in fact committed the offense but whether the
arresting officers had probable cause to believe the person arrested had committed the offense.”
Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). “Probable cause exists
whenever reasonably trustworthy information or circumstances within a police officer’s

7

Here, Plaintiff only alleges that there were omissions when obtaining the warrant. Therefore,
the Court need not address the test for assertions. See Wilson, 212 F.3d at 788 (“An assertion is
made with reckless disregard when ‘viewing all the evidence, the affiant must have entertained
serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of
the information he reported.’”).
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knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense
has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255
(3d Cir. 2002). “A police officer may be liable for civil damages for an arrest if ‘no reasonable
competent officer’ would conclude that probable cause exists.” Wilson, 212 F.3d at 789-90.
c. Analysis
The first step in analyzing qualified immunity is determining whether Defendant
Sylvester “knowingly and deliberately, or with a reckless disregard for the truth, made false
statements or omissions that create a falsehood in applying for a warrant.” Sherwood, 113 F.3d
at 399. In other words, would a reasonable person have known that the omitted portions of the
voicemail were the kind of thing the judge would wish to know? Wilson, 212 F.3d at 788.
Under the facts pleaded in the Amended Complaint, no reasonable person could conclude that a
judge would want to know that, in the remainder of the message, Plaintiff threatened to go to the
prosecutor and send the victims to jail. Indeed, this portion of the message does nothing to
contradict or cast doubt on Plaintiff’s first threat—coming to New Jersey and hanging the
victims. The remainder of the message merely includes further threats to the victims (i.e., going
to the prosecutor in an attempt to put the victims in jail).
Even if the Court were to find that a reasonable person would have known that the
omissions were the kind of thing a judge would want to know, Plaintiff’s complaint would still
fail to state a claim because the omissions were not material. A corrected warrant affidavit—i.e.,
one that included the full message rather than the truncated message—would still establish
probable cause in this case. Defendant Sylvester knew that Plaintiff left a message for the
victims where he threatened to come to New Jersey and hang them. Plaintiff’s additional threat
to go to the prosecutor in an attempt to get the victims arrested does not undermine the fact that
8

Plaintiff did leave the threatening message. The facts in the Amended Complaint fail to state a
claim to relief that is plausible on its face because, even with the omission added, any reasonable
police officer would have concluded that probable cause existed. 8 See Wilson, 212 F.3d at 78990 (finding that in order to state a claim, a juror would have to conclude that “‘no reasonabl[y]
competent officer’ would conclude that probable cause exists”).
Plaintiff argues that Rule 3:3-2 of the Rules Governing the Courts of the State of New
Jersey supports denying Defendants’ motion.

Rule 3:3-1(c)—Rule 3:3-2 was recently

renumbered—states that a summons rather than an arrest warrant should be issued unless one of
six situations exist. But failure to follow state-mandated procedure “does not constitute a per se
violation of [a] plaintiff's constitutional rights. . . . [T]he failure to issue a complaint-summons
rather than a complaint-warrant [does] not violate a right protected under the Civil Rights Act.”
Sanducci v. City of Hoboken, 315 N.J. Super. 475, 485 (App. Div. 1998) (internal citations
omitted). On other hand, such a violation “must be considered in determining whether the police
officers had probable cause or whether they reasonably believed that probable cause existed.”
Connor v. Powell, 162 N.J. 397, 411, 744 A.2d 1158, 1165 (2000). Under the Rules, an arrest
warrant may be issued if “there is a reason to believe the defendant is dangerous to self, other
persons, or property.” N.J. R. C.R. R. 3:3-1(c). Because Plaintiff’s message indicated he wanted

8

Although not necessary for this Court’s ruling, it is also notable that Defendant Sylvester
conferred with both the magistrate judge and the prosecutor. (Dkt. No. 5-3.) Moreover, the
prosecutor confirmed that the arrest warrant was valid. (Id.) Under these circumstances, there is
a presumption that the officer is entitled to qualified immunity if his good faith reliance on the
prosecutor’s legal opinion was objectively reasonable. Kelly v. Borough of Carlisle, 622 F.3d
248, 255-56 (3d Cir. 2010). “[A] plaintiff may rebut this presumption by showing that, under all
the factual and legal circumstances surrounding the arrest, a reasonable officer would not have
relied on the prosecutor’s advice.” Id. Plaintiff has not rebutted that presumption in this case.
9

to hang the victim (i.e., was a danger to the victim), Defendant Sylvester did not err in issuing an
arrest warrant rather than a summons.
The Amended Complaint fails to plead facts that would establish that a Constitutional
right was violated. Therefore, Plaintiff’s Amended Complaint must be dismissed with respect to
Defendant Sylvester.

Plaintiff premises the Roxbury Township Police Department’s and

Defendant Driscoll’s liability on the existence of a Constitutional violation by Defendant
Sylvester. Because there is no Constitutional violation with respect to Defendant Sylvester, the
claims against Defendant Driscoll and the Roxbury Township Police Department must also be
dismissed. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Finally, Plaintiff concedes that the Second Count of his First Amended Complaint against
the Roxbury Police Department does not meet the § 1983 pleading standard required by Iqbal.
(Dkt. No. 8 at 8-9.) Plaintiff’s § 1983 claim against the Roxbury Police Department must be
dismissed on this separate and independent ground.
d. State Law Claims
Plaintiff’s remaining claims are predicated on state law.

Pursuant to 28 U.S.C.

§ 1367(c)(3), “[t]he district court may decline to exercise supplemental jurisdiction over a claim”
if “the district court has dismissed all claims over which it has original jurisdiction.” The Third
Circuit has recognized the authority of district courts to decline to retain jurisdiction after the
federal claims have been dismissed. See, e.g., Annulli v. Panikkar, 200 F.3d 189, 202-03 (3d Cir.
1999) (affirming decision of the district court to decline to exercise pendent jurisdiction after
granting summary judgment to the defendants on the claims arising under federal law),
abrogated on other grounds by Rotella v. Wood, 528 U.S. 549 (2000); Jackson v. Fauver, 334 F.
Supp. 2d 697, 737-38 (D.N.J. 2004). The Court, therefore, declines to exercise supplemental
10

jurisdiction over Plaintiff’s remaining claims in light of the considerations of judicial economy,
convenience, fairness, and comity. Plaintiff may choose to refile those claims in state court.
IV.

CONCLUSION & ORDER

For the reasons stated above,
IT IS on this 30th day of January, 2014,
ORDERED that Defendants’ motion to dismiss (Dkt. No. 5) is GRANTED; and it is
further
ORDERED that Plaintiff’s Amended Complaint is DISMISSED; and it is further
ORDERED that the Court declines to exercise jurisdiction over Plaintiff’s remaining
state law claims and those claims are DISMISSED without prejudice; and it is further
ORDERED that the Clerk of the Court is to CLOSE this case; and it is further
ORDERED that Plaintiff may seek permission to reopen this case within 30 days of this
Order should he be able to addresses the deficiencies discussed herein.

/s/ Hon. Faith S. Hochberg____
Hon. Faith S. Hochberg, U.S.D.J.

11