KAPLAN v. HOLDER et al
OPINION. Signed by Judge Claire C. Cecchi on 2/2/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD P. KAPLAN,
Civil Action No. 14-0830 (CCC)
ERIC HOLDER, JR., et al.,
CECCHI, District Judge:
Pro se Plaintiff Richard P. Kaplan, a convicted prisoner confined at the Federal
Correctional Institution in Otisville, New York, files the instant Amended Complaint under Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 42 U.S.C.
1983, alleging that his
constitutional rights were violated through malicious prosecution by federal and state officials.
After the initial Complaint was filed, prior to the Court’s screening, Plaintiff filed an Amended
Complaint, ECF No. 15. Because Plaintiff is proceeding under in forma pauperis status, at this
time, the Court must review the Amended Complaint to determine whether it should be dismissed
as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because
it seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
1915(e)(2). For the reasons stated below, the Court dismisses the Amended Complaint.
At the outset, the Court notes that the Amended Complaint is sparse and contains very few
factual allegations; indeed, the Amended Complaint is comprised mostly of bare conclusory
In essence, the Amended Complaint asserts that various named and unnamed
defendants acted in a conspiracy to maliciously prosecute Plaintiff in two separate matters: (1) for
“accepting corrupt funds from the City contractors,” (ECF No. 15 at 7); and (2) in a murder-forhire scheme, (ECF No. 15-1). Although Plaintiff does not explicitly identifi the criminal matters
in question, the Court’s research reveals two criminal cases in this district in which Plaintiff was
charged and convicted with the crimes alleged in the Amended Complaint. See United States v.
Kaplan, No. 07-cr-0329 (D.N.J. filed Apr. 20, 2007) (bribery involving federal programs); United
States v. Kaplan, No. 08-cr-058 1 (D.N.J. filed Mar. 31, 2008) (murder for hire).
While the Amended Complaint contains few factual allegations supporting his claims of
conspiracy and malicious prosecution, Plaintiff asserts claims against a wide range of defendants,
from Eric Holder, Jr., then the Attorney General of the United States, Christopher Christie, then
the United States Attorney for this federal district, Bruce I. Kaplan, the mayor of New Brunswick,
various federal and county prosecutors, FBI investigators, and the police chief and the city planner
of New Brunswick. This exacerbates the deficiencies of the Amended Complaint—for example,
there is no allegation whatsoever detailing how the then Attorney General of the United States was
involved in the alleged conspiracy. The extent of his allegations are that all of these defendants
“take part in away [sic] when communication was being performed when the plaintiff was under.
investigation [for the above crimes].” (ECF No. 15-1 at 4.) Essentially, Plaintiffs theory of the
case is that “[a] person who becomes involved in a conspiracy has to communicate with another
person who falsely acknowledges a criminal act or any other Due Process violations.” (Id.) An
example of the alleged “criminal act” or violation is that Defendants “deliberate[ly] use[d]
jailhouse informants to elicit incriminating information from [Plaintiff].” (Id. at 5.)
The Court notes that nowhere in the Amended Complaint does Plaintiff assert that he did
not commit the acts that were found to be criminal. For example, he essentially admits that he did
attempt to offer “consideration
in exchange for another’s agreement to commit murder[.]”
(ECF No. 15-1 at 3.) He merely argues the legal sufficiency of the government’s proof. Id.
Moreover, absent from the allegations is that Plaintiff pleaded guilty in both of the federal cases.
See Kaplan, No. 07-cr-0329, ECF No. 6; Kaplan, No. 08-cr-0581, ECF No. 16. The Court takes
judicial notice of these guilty pleas. See Fed. R. Evid. 201(b) (“The court may judicially notice a
fact that is not subject to reasonable dispute because it.
can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”); Bolick v. Pennsylvania, 473 F.
App’x 136, 138 (3d Cir. 2012) (“[A) court is permitted to look to matters of public record,
including ‘criminal case dispositions.”) (quoting Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993)).
STANDARD OF REVIEW
Every complaint must comply with the pleading requirements of the Federal Rules of Civil
Procedure. Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not
necessary; the statement need only ‘give the defendant fair notice of what the.
claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint
does not need detailed factual allegations, a plaintiffs
obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do
Factual allegations must be enough to raise a right to
relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
In determining the sufficiency of a pro se complaint, the Court must be mindful to accept
its factual allegations as true, see James v. City of Wilkes—Barre, 700 F.3d 675, 679 (3d Cir. 2012),
and to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519, 520—21
(1972); United States v. Day, 969 f.2d 39,42 (3d Cir. 1992).
Based on Plaintiff’s allegations, the Court construes the Amended Complaint as asserting
claims of malicious prosecution, and conspiracy to commit malicious prosecution, against all
Defendants) To state a claim for malicious prosecution, a plaintiff must satisfy each of the
following elements: “(1) the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable cause; (4)
the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a
consequence of a legal proceeding.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en
banc) (internal quotation marks omitted). However, a plaintiff cannot state a valid malicious
prosecution claim when he pleads guilty to a charge that was allegedly malicious, because a guilty
plea “does not permit a later assertion of no probable cause.” Walker v. Clearfield Cty. Dist. Att
Plaintiff also raises “fraudulent concealment” claims against all Defendants. However, the
Court is not aware of any federal cause of action for fraudulent concealment. See Ktehr v. A. 0.
Smith Corp., 521 U.S. 179, 195-96 (1997); Jonas v. Gold, 627 F. App’x 134, 139 (3d Cir. 2015).
Under New Jersey state common law, there is an independent cause of action for fraudulent
concealment, see Polhill v. FedEx Ground Package Sys., 604 F. App’x 104, 107 n.2 (3d Cir. 2015),
but as the Court is declining jurisdiction over Plaintiff’s state law claims, infra, the Court does not
address the merits of such a state law claim here. The Court further notes that as fraudulent
concealment claims are claims of fraud, they are subject to the heightened pleading requirements
under Federal Rule of Civil Procedure 9(b), which the Amended Complaint does not appear to
meet. Polhill, 604 F. App’x at 106 (“Poihill would have to comply with Rule 9(b)’s particularity
requirement in setting forth the alleged misconduct [of fraudulent misrepresentation and
concealment].”). Moreover, Plaintiff refers to the Freedom of Information Act and the Privacy
Act, (ECF No. 15-1 at 8), but the Court does not construe the Amended Complaint as raising
claims under those acts; the Court reads those references as background information.
413 F. App’x 481, 483 (3d Cir. 2011) (holding that a guilty plea precludes a finding that
prosecution was without probable cause).
Here, Plaintiffs malicious prosecution claims must fail because he cannot establish that
the criminal proceedings were initiated without probable cause. As stated above, Plaintiff was
charged in two federal criminal proceedings that mirror the allegations in the Amended Complaint,
and in both proceedings, Plaintiff pled guilty. As such, his guilty plea in each case precludes a
finding that either proceeding was initiated without probable cause.
Thus, Plaintiff cannot
establish an essential element of malicious prosecution, and fails to state a claim upon which relief
may be granted.2 Likewise, his claims that Defendants conspired to falsely prosecute him also
fail. See Hamborsky v. O’Barto, 613 F. App’x 178, 183 (3d Cir. 2015) (“Given our conclusion
that the malicious prosecution claims fail, Hamborsky’s conspiracy claim must also fail because
there is no underlying violation of his constitutional rights, which is a prerequisite for conspiracy
liability.”) (citing In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 (3d Cir.
1999)). Accordingly, the Court dismisses these claims without prejudice.
To the extent Plaintiff raises any claims of false imprisonment and withholding of
exculpatory evidence, those claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), because
success on those claims would necessarily imply that Plaintiffs convictions were invalid.
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not coguizable under § 1983.
Id. at 486-87. Here, there is no record that Plaintiff has succeeded in invalidating his convictions
in a collateral proceeding, so any claims of false imprisonment and withholding of evidence cannot
Furthermore, the Court declines jurisdiction over Plaintiff’s remaining state law claims.
Federal law permits the district court, within its discretion, to decline to exercise supplemental
jurisdiction over a claim if “the district court has dismissed all claims over which it has original
28 U.S.C. 1367(c)(3).
Therefore, the Court dismisses those claims without
For the reasons set forth above, Plaintiff’s Amended complaint DISMISSED WITHOUT
Claire C. Cecchi, U.S.D.J.
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