MCKINNIE v. HUDSON COUNTY PROSECUTOR OFFICE et al
OPINION. Signed by Judge Kevin McNulty on 10/3/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 13-7290 (KM)(MAH)
HUDSON COUNTY PROSECUTOR OFFICE
This Amended Complaint (ECF no. 31, cited as “AC”), filed by Dereck
McKinnie, pro se, arises primarily, but not exclusively, from a family dispute
over real property in Jersey City. The circumstances are described in detail in a
prior opinion in this action which granted the motion of certain defendants to
dismiss the Amended Complaint. (Opinion, ECF no. 48, cited as “Op.”) Now
before the court is the motion (ECF no. 62) of additional defendants (the
“Jersey City Defendants”) to dismiss the Amended Complaint for failure to state
a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Having
received no response to the motion, I issued an order to show cause. (ECF no.
64) In response, Mr. McKinnie filed a short statement to the effect that he
opposed the motion, referring to prior papers that he had filed. (ECF no. 66) It
was accompanied by a letter application to permit filing of this opposition out
of time, which I will grant. (ECF no. 67) The Jersey City Defendants’ motion to
dismiss is therefore ripe for decision.
Prior Dismissals and This Motion
The Amended Complaint cites extensively to 100 pages of exhibits (ECF
no. 1-1) that were attached to the original complaint, which was dismissed
(ECF nos. 29, 30). The plaintiff continues to rely on them, and in the prior
Opinion I reviewed them in order to get a sense of the allegations. (See Op. 2—8)
That prior opinion, in which I dismissed the Amended Complaint as against
certain defendants, is incorporated by reference, and familiarity with its
contents is assumed. Suffice it to say that Mr. McKinnie, having already sued
his relatives in state court and brought one prior federal action, now sues
several groups of defendants, including Jersey City, its police department, and
several police officers; County and municipal courts and court personnel; the
Hudson County Prosecutor’s Office (HCPO) and individual prosecutors; and two
Prior orders and opinions of the court dismissed the Amended Complaint
as against three groups of defendants: the court and court personnel at the
County level; the HCPO and prosecutors; and the two attorneys.’ (See Orders,
ECF nos. 49, 56) Here are the defendants that remain active on the docket:
Jersey City Municipal Court Prosecutor Office
Linda Artiston, DO
Specifically listed in those earlier orders of dismissal were the Hudson County
Prosecutor’s Office, Erika Patterson, Michelle Field, Michelle Vicari, Priscila Pender,
Miguel Torres, and Hudson Vicinage of the State of New Jersey Judiciary (collectively
referred to as the “Hudson Defendants”); Gerald D. Miller, Esq.; and Victor 0. Sison,
Esq. (ECF nos. 49, 56)
As to Mark Blaeiter, the summons was returned unexecuted, with the notation
that there is no one of that name at the HCPO. (ECF no. 36) The clerk will be directed
to close the file as to Blaeiter.
Also listed as a defendant is “Miller Myerson & Cobro Attorney,” which has
apparently never appeared. Miller, Meyerson & Corbo is the law firm of defendant
Gerald D. Miller, Esq. I have already dismissed the Amended Complaint as against Mr.
Miller himself, and no separate allegations are made against the firm as such. I will
therefore order dismissal as to the firm as well.
City of Jersey City
Jersey City Police Department
P.O. Sgt. Sarno
Sgt. George Rolando
Det. William Jackson
Those twelve defendants, all associated with the City of Jersey City and
represented by Corporation Counsel, I will refer to as the “Jersey City
Defendants.” They are the movants on this motion to dismiss the Amended
Complaint. (ECF no. 62) As to these defendants, I construe the Amended
Complaint as primarily asserting a federal constitutional claim under 42 U.S.C.
STANDARD ON MOTION TO DISMISS
The defendants move to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6). Rule 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 defendant, as the moving party, bears the burden of showing that no claim
has been stated. Animal Science Products, Inc. a China Minmetals Corp., 654
F.3d 462, 469 n. 9 (3d Cir. 2011).
At a minimum, a complaint must contain
(1) a short and plain statement of the grounds for the courts
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support; (2) a short and plain
statement of the claim showing that the pleader is entitled to relief;
and (3) a demand for the relief sought, which may include relief in
the alternative or different types of relief
FED. R. CIV. P. 8(a).
From the seminal modern cases of Bell AU. Corp. v. Twombly, 550 U.s.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Third Circuit
has extracted a three-step process for reviewing a complaint:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.j at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The complaint’s allegations
must be factual, not conclusoiy, and they must be sufficient to raise a
plaintiff’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570; see also Umland v. PLANCO Fin. Serv.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008).
As related in more detail in my earlier Opinion, Mr. McKinnie’s
grievances essentially arise from two sources.
First, he considers himself the true owner of a house which is titled to
and occupied by his mother, Rethel McKinnie, and his brother, Byron
McKinnie.2 Rethel McKinnie obtained a restraining order was entered against
Mr. McKinnie. That order was vacated on appeal. R.M. v. D.M., No. A-565607T3, 2009 WL 4981203 (Dec. 24, 2009). In Mr. McKinnie’s view, the Appellate
Division’s order was tantamount to a declaration that he owns or is entitled to
occupy the house, but the police, the prosecutors, and the courts have failed to
recognize this. That order vacating the restraining order is seemingly the “court
order” to which the Amended Complaint repeatedly refers.
Herein, “McKinnie” or “Mr. McKinnie” refer to the plaintiff. Rethel McKinnie and
Byron MclCnnie will always be identified as such.
Second, Mr. McKinnie refers to three 30-year-old cars that once were
garaged at his mother’s house. He believes they have been stolen. Again, he
faults the authorities for their failure to prosecute anyone for this crime.
The Police Officer Defendants
Allegations against the Police Officers
The allegations against the police officer defendants primarily arise from
an incident on January 8, 2010. The Amended Complaint alleges that Police
Officer Evan, apparently joined by Police Officer Green, confronted Mr.
McKinnie at 269 Bergen Avenue, Jersey City. That is the address of the home
titled to and occupied by McKinnie’s mother and brother, Rethel and Byron
McKinnie. Officer Evan spoke to Rethel McKinnie, restrained McKinnie, and
told him he could not enter the house. McKinnie told the officer he had had a
heart attack and that his leg hurt. The officers gave McKinnie a ride to 181
Pearsall Avenue in Jersey City (apparently his home at the time) and let him
go. (AC pp. 5—7)
McKinnie complained to
Sarno about the incident. Sarno allegedly
did not “enforce the court order” or otherwise do his job correctly. (AC at pp. 9—
McKinnie complained to Sgt. Rolando, who allegedly said that Rethel and
Byron McKinnie did not have to let him into the house, because the house is in
their name. (AC at pp. 13—14)
Det. Jackson met with Rolando, and also told MclCnnie to fill out the
citizen complaint form that Rolando brought out. He also conducted an
interview with McKinnie. (AC at 15—16)
There are additional allegations of official unresponsiveness to alleged
auto theft. Officer Butler failed to enter McKinnie’s complaints about three
stolen vehicles into the New Jersey DMV computer. It seems that he did check
the garage at 269 Bergen Avenue to see if the cars were there. The complaint
also refers to police reports, or a lack of police reports. (AC at pp. 11—12)
Attached to the original complaint are copies of titles for three
automobiles: a 1977 Mercedes Benz, a 1985 Mercedes Benz, and a 1985
Chevrolet. (ECF no. 1-1 at 76—78) Also attached are Jersey City police reports
and handwritten notes stating that McKinnie said he last saw these 30-yearold cars in 2010. The alleged thieves are not identified. (ECF no. 1-1 at 72—75,
79—82) Municipal court documents, relating to claims and cross-claims by
McKinnie and his family members, possibly regarding the cars, are also
attached. (ECF no. 1-1 at 83—90)
A civilian complaint form, filed with the police on October 19, 2012,
complains that they are not enforcing the law and have not put the vehicle on
the “DMV theft sheet.” A handwritten note giving more details is attached. (ECF
no. 1-1 at 97) A letter from Det. William Jackson, dated January 17, 2013,
states that the complaint is being investigated and requests an interview with
McKinnie. (ECF no. 1-1 at 100)
Statute of limitations
The claims against the police officers arise primarily from the incident
outside the house of McKinney’s mother at 269 Bergen Avenue on January 8,
2010, and the immediate aftermath. The officers, according to the Amended
Complaint, restrained him, prevented him from entering the house, and, when
he complained of his medical condition, gave him a ride home. Their superiors
did not respond to McKinney’s complaints that the officers on the scene
refused to “enforce the court order.”3
The claims arising from this incident are barred by the statute of
limitations. Section 1983 claims are subject to New Jersey’s two-year personal
injury tort statute of limitations. N.J. Stat. Ann.
§ 2A: 14-2(a).4 See Patyrak tc
Apgar, 511 F. App’x 193, 195 (3d Cir. 2013) (per curiam) (citing Dique u. N.J.
As noted above, this is an apparent reference to the Appellate Division’s order
vacating the restraining order against McKinnie, which had been entered in December
2009. That order did not, however, entitle McKinnie to occupancy or ownership of the
I interpret these as claims under 42 U.S.C. § 1983. Even if viewed as state tort
claims, however, they would be subject to the same two-year statute of limitations. See
N.J. Stat. Ann. § 2A: 14-2(a) (two-year tort statute of limitations); N.J. Stat. Ann. §
59:8-8b (tort claim against public entity or employee must be brought within two years
State Police, 603 F.3d 181, 185 (3d Cir. 2010)). Although the statute of
limitations is an affirmative defense, a dismissal is permissible where the
action’s untimeliness is clear, based on the complaint and items properly
considered on a motion to dismiss. See Fried a JPMorgan Chase & Co., 850
F.3d 590, 604 (3d Cir. 2017).
These claims against the police officer defendants relate to the
confrontation at the Jersey City house and its immediate aftermath, on or
about January 8, 2010, This action was filed on November 22, 2013, nearly
three years later. The claims arising from this incident are therefore barred by
the two-year statute of limitations.
The remaining allegations, concerning police unresponsiveness to
McKinnie’s claim of auto theft, cannot all be dated specifically. They may
extend into the limitations period. I therefore discuss alternative grounds for
Failure to state a claim/Qualified immunity
The claims against the police officer defendants are also barred by
qualified immunity, to the extent they state a claim at all. “[Q]ualified immunity
shields government officials from civil liability as long ‘as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” McGreevy a Stroup, 413 F.3d 359, 364
(3d Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity “gives government officials breathing room to make
reasonable but mistaken judgments,” and “protects all but the plainly
incompetent or those who knowingly violate the law.” Messerschmidt v.
Millender, 564 U.S. 535, 546 (2012); see also Malley v. Briggs, 475 U.S. 335,
Qualified immunity entails a two-step analysis: the first step asks
whether “the official’s conduct violated a constitutional right” at all. McGreevy,
413 F.3d at 364 (citing Saucier a Katz, 533 U.S. 194, 201 (2001)). The second
requires an analysis of whether “the right that the defendant’s conduct
allegedly violates was a clearly established one, about which a reasonable
person would have known.” Qnienke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
By his own account, McKinnie reported only that three 30-year-old cars,
which he had not seen since 2010, were missing from his mother’s garage. He
did not know who had taken them or what had become of them. Officer Butler
visited the scene. Seemingly there was state-court litigation among the family
members involving the cars, although the outcome is unclear. When McKinnie
complained, Det. Jackson followed up, at least to some extent. See Section
These facts present a quintessential police judgment call about whether
to pursue an investigation. The police could reasonably have concluded that, if
he left the cars at his mother’s property, McKinnie had abandoned them.
Alternatively, if the cars were stolen, there were no leads. Civil litigation
apparently made no headway in establishing McKinnie’s rights, if any, to the
There is no apparent constitutional violation here, and certainly no
violation so clear as to overcome the officers’ qualified immunity.5
The Amended Complaint is dismissed as against the police officer
The Prosecutors in the Municipal Court
The motion to dismiss is also brought on behalf of “Jersey City Municipal
Court Prosecutor Office” and three prosecutors: Linda Ariston, Joe Taalabaus,
and Steven Hummell.
The complaint seems to allege that these three prosecutors appeared in
Jersey City Municipal Court in connection with McKinnie’s allegations that
Qualified immunity might also apply to the officers’ conduct on January 8,
2010, if such claims were not time-barred. They were told by Rethel McKinnie that
there was a restraining order in effect (although it had been vacated shortly before). In
any event, they rightly concluded that she had the right to exclude McKinnie from the
house, but that McKinnie did not accept that. Under the circumstances, they seem to
have made a reasonable judgment about the amount of restraint required, and they
responded humanely to McKinnie’s medical complaints by giving him a ride home.
three of his cars were stolen. He names them as Linda Ariston, Joe Taalabaus,
and Steven Hummell. The nature of such appearances is not stated. The
complaint seems to be that they allegedly failed to bring charges stemming
from “violation of court order” or against the unknown person who stole the
three cars. (AC at pp. 17—24)
There is also a civilian complaint form filed with the Hudson County
Prosecutor’s Office on November 15, 2012, for “violation of court order.” (ECF
no. 1-1 at 92) This, too, may stem from McKinnie’s belief that the Appellate
Division ordered him restored to ownership or occupancy of the Jersey City
house. (ECF no. 1-1 at 94)
A prosecutor is immune for all acts that are “intimately associated with
the judicial process.” Imbler v. Pachtman, 424 U.S. 409, 430-3 1 (1976); see also
Kulwicki v. Dawson, 969 F.2d 1454, 1463—64 (3d Cir. 1992) (holding that a
prosecutor was entitled to absolute immunity even though he allegedly directed
a police officer to file baseless charges against the prosecutor’s political rival);
see also Schaeffer v. Wilson, 240 F. App’x 974, 975 (3d Cir. 2007) (“The
decision to initiate a prosecution is at the core of a prosecutor’s judicial role.
And we have found no authority creating a mandatory duty upon [a police
officer and district attorney] to investigate and pursue the prosecution of
[others].”) (citing Inmates of Attica Con-. Facility v. Rockefeller, 477 F.2d 375,
382 (2d Cir. 1973)). Even where probable cause is present, a prosecutor’s
decision to decline criminal prosecution is shielded by absolute immunity. See
Sanders v. Downs, 420 F. App’5c 175, 180 (3d Cir. 2011) (“Sanders’ claims
necessarily fail because prosecutors enjoy absolute
immunity for the failure to adequately investigate a case and for the decision to
initiate, or decline to initiate, a prosecution.”) (citing Kulwicki, 969 F.3d at
The Amended Complaint, read liberally, asserts that these prosecutors
exercised their functions of appearing in court and deciding whether to bring
criminal charges. As to these core functions, they enjoy absolute immunity
In the alternative, the Amended Complaint simply fails to state a claim
against these defendants with the specificity required by Twomhly and Iqbal,
supra. At best, it alleges that these prosecutors appeared in municipal court in
some unspecified fashion; that they declined to bring criminal charges against
a car thief whose identity was unknown; and that they did not bring charges
based on the plaintiff’s family members excluding him from a property to which
they held the deed, a matter that was already the subject of civil litigation.
These allegations do not make out a claim of any kind.
The Amended Complaint is therefore dismissed as against these four
The City of Jersey City
Finally, the motion to dismiss is brought on behalf of the City of Jersey
First, I have dismissed all claims against City employees. It follows that
the City cannot be derivatively liable for the same claims. For example, claims
inadequately alleged or barred by the statute of limitations as to police officers
would likewise be barred as against their employer, the City.
Second, a municipality’s liability under Section 1983 “may not be proven
under the respondeat superior doctrine, but must be founded upon evidence
that the government unit itself supported a violation of constitutional rights.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990); Monefl a Dep’t
Sen’s. of City of N.Y., 436 U.S. 658, 690—91, 98 S. Ct. 2018, 2035—36 (1978).
The Jersey City Police Department, named as a defendant, is an arm of city
government, not an independent entity which may sue and be sued. See Mitchell u.
City of Jersey City, No. 15-CV-6907 (1CM), 2016 WL 1381379, at *1 n.1 (D.N.J. Apr. 7,
2016); McGovern v. Jersey City, No. 98-CV-5 186 2006 WL 42236, at *7 n.4 (D.N.J.
Jan. 6, 2006) For allegations against the Police Department, then, the proper
defendant is the City itself. The Amended Complaint will be dismissed as against the
Jersey City Police Department.
For example, a plaintiff must allege an unconstitutional pattern or practice, or
inadequate training of employees. The Amended Complaint alleges nothing
specific about the City’s involvement, beyond the fact that it employs some of
the individual defendants.
As to the City, too, the motion to dismiss the Amended Complaint is
Counterclaim and Cross-Claims
Defendant Victor 0. Sison, Esq., asserts a counterclaim against Mr.
McKinnie for bringing a frivolous action, citing N.J. Stat. Ann. 2A; 15-59. (ECF
no. 12 at 2) That statute does not apply in federal court, and Mr. Sison does
not seem to have pursued the Counterclaim in any event. The Counterclaim is
As to state-law torts, I note two alternative grounds for dismissal.
First, I have dismissed all federal claims and will not exercise my discretion to
assert pendent jurisdiction. See 18 U.S.C. § 1367. The federal claims are entirely
insubstantial, and the action has not even progressed to the discovery stage. There is
no benefit to a federal court’s hearing whatever state-law claims may remain.
Second, there is no indication that McKinnie has filed the requisite notice of
claim pursuant to the New Jersey Tort Claims Act (NJTCA). This is particularly
significant in that he has attached a hundred pages of pleadings and other exhibits.
Assuming the notice was not filed, no state law tort claims can be sustained against
the City or public employees.
Under the NJTCA, “[n]o action shall be brought against a public entity or public
employee under [the NJTCAJ unless the claim upon which it is based shall have been
presented in accordance with the procedure set forth in this chapter.” N.J. Stat. Ann. §
59:8-3. That “procedure” requires that a notice of claim be filed with the public entity,
generally within 90 days after the accrual of the cause of action. N.J. Stat. Ann. §
59:8-8. See Velez u. City of Jersey City, 180 N.J. 284, 294—96 (2004); Cliett v. City of
Ocean City, No. CIV. 06-4368 (JBS), 2007 WL 2459446, at *2 (D.N.J. Aug. 24, 2007).
Only thereafter, once six months have passed, may the claimant file suit. N.J. Stat.
Ann. § 59:8-8. The deadline may be extended based on “extraordinary circumstances,”
but only if application is made within one year after accrual of the claim, which is long
past. See N.J. Stat. Ann. § 59:8-9. The Notice is ajurisdictional prerequisite, and in its
absence, the action will be dismissed with prejudice. See Bonitsis v. N.J. Inst. Of Tech.,
363 N.J. Super. 505, 516 (App. Div. 2003); Ezzi v. DeLaurentis, 172 N.J. Super. 592
(Law Div. 1980).
In their original Answer (ECF no. 27 at 3), the Jersey City Defendants
asserted crossclaims for contribution and indemnification. These are dismissed
as moot in light of the dismissal of all of the plaintiff’s claims for damages.
For the foregoing reasons, the motion to dismiss the Amended Complaint
filed by defendants Jersey City Municipal Court Prosecutor Office, Linda
Artiston, DO, Joe Taallabaus, Steven Hummell, City of Jersey City, Jersey City
Police Department, P.O. Evan, P.O. Green, P.O.
Sarno, P.O. Butler, Sgt.
George Rolando, and Det. William Jackson is GRANTED.
This dismissal of the Amended Complaint is, as to these particular
defendants, the second order of dismissal, and the plaintiff has not responded
substantively to this motion to dismiss. Finding that a further opportunity to
amend would be futile, I enter these dismissals with prejudice.
Dated: October 3, 2017
United States District Judge
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