DESPOSITO v. STATE OF NEW JERSEY et al

Filing 18

OPINION fld. Signed by Judge Madeline C. Arleo on 5/5/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SONNY DESPOSITO,

Civil Action No. 14-1641

Plaintiff,
V.

STATE OF NEW JERSEY, et al.,
OPINION
Defendants.

ARLEOg United States District Judge:

INTRODUCTION

I.

Plaintiff Sonny Desposito, a prisoner currently confined at Federal Correctional
Institution, Miami, Florida, seeks to bring this action informapauperis Based on his affidavit of
indigence, the Court will grant Plaintiff’s application to proceed inJbrmapauperis pursuant to
28 U.S.C.

§

19 15(a) and order the Clerk of the Court to file the complaint.’

At this time, the Court must review the Amended Complaint, pursuant to 28 U.S.C.

§

Plaintiff has also filed a motion seeking the return of the $400.00 filing fee, which was paid on
Plaintiff’s behalf by William Desposito after his first application to proceed informapauperis
was denied without prejudice for failing to submit a complete application. (Nos. 2-3.) Plaintiffs
application states that he believed he needed to pay the filing fee to prevent expiration of the
statute of limitations on his claims. (No. 12.) The Court grants that motion and will direct the
Clerk to refund the fee to William Desposito using the address on file. The Court notes,
however, that at the time the Court denied Plaintiffs application for informapauperis status, the
Court advised Plaintiff that the administrative termination was not a dismissal for purposes of the
statute of limitations and, if reopened, would not be subject to the statute of limitations bar if
originally timely filed. (See No. 2.)

1915(e)(2) and l915A 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. For the reasons set forth below, the Court
concludes that the Amended Complaint should be dismissed in part, and Plaintiff will be granted
leave to file another amended complaint to cure the deficiencies described herein.
II.

FACTUAL BACKGROUND
Plaintiff filed the instant Complaint pursuant to 28 U.S.C.

§

1983 on March 14, 2014, and

his signed Complaint is dated February 18, 2014.2 (No. 1 at 60.) On August 8,2014, Plaintiff
filed a 60-page Amended Complaint naming 28 individuals and entities as Defendants in the
instant action. The Amended Complaint offers a stream of consciousness account of numerous
alleged wrongs perpetrated against Plaintiff by various state actors and private parties over a
period often years. The gravamen of Plaintiff’s Amended Complaint, however, appears to be
that the named Defendants conspired to arrest, imprison, charge, and prosecute Plaintiff for a
robbery that occurred on April 20, 2008 and for which he was ultimately acquitted in March
2012 following a jury trial. Plaintiff contends that he was framed for the 2008 robbery and that
the named individual Defendants in the Bergen County Prosecutor’s Office, the Westwood
Police Department, and the Bergen County Sheriff’s Department fabricated evidence against
him, created an impermissibly suggestive photo array, and coerced witnesses to identify him as
the perpetrator of the robbery. Plaintiff further contends that the State’s key witnesses, the judge
that presided over his trial, and his both his retained and court-appointed attorneys also
participated in the conspiracy to wrongly convict him of the 2008 robbery.

2

For purposes of this screening opinion and pursuant to the prisoner mailbox rule, the Court will
use the latter date to calculate the applicable limitations period.
2

Plaintiff traces the conspiracy to convict him of the 2008 robbery to a vendetta on the part
of the Westwood Police Department and officers. (Am. Compi. at 12-23.) Plaintiff contends
that this vendetta against him and his family dates back to 2002. He also recounts details of a
separate incident in the 2008 timeframe in which Westwood Police brought charges against
Plaintiff’s brother. (id. at 12-13.) Plaintiff has sued Officer Michael PontiHo, Sergeant Robert
Held, Detective Robert Saul, Jr., Sergeant Gerard Fortunat, Sergeant Hucheson and Police Chief
Frank Regina, all of the Westwood Police Department. Plaintiff contends that the Westwood
Police Department’s longstanding vendetta against him and his family amounted to an unofficial
policy within the department and that Chief Frank Regina is responsible for the conduct of his
subordinates. (Am. Compl. at 50.)
Plaintiff’s Amended Complaint also details several incidents in which he was mistreated
by members of the Westwood Police Department and sheriffs at the Bergen County Jail while in
custody in connection with the 2008 robbery. While in Westwood police custody in early 2008,
Plaintiff also alleges he was mistreated by the officers and that the Chief Frank Regina was both
aware of this conduct and participated in it. (Am. Compl. at 15-16.) While incarcerated at
Bergen County Jail as a pretrial detainee beginning on April 24, 2008, Plaintiff alleges that he
was likewise mistreated by the Bergen County Sheriffs. (Am. Compi. at 23.) Plaintiff contends
that the Bergen County Sheriff also executed a search warrant on Plaintiffs residence in June of
2009, and the officers conducting the search allegedly destroyed his property and stole valuable
items from him. (Am. Compi. at 24.)

It is unclear from the Amended Complaint whether Plaintiff was held pursuant to the 2008
robbery charges or pursuant to another charge.
3

Plaintiff additionally alleges that “[t]wo unknown Berger [sic] County sheriffs threatened
[his] life [on] 3-14-12 in the Hackensack Superior Court House in N.J.” (See Am. Compl. at 53.)
This threat allegedly occurred on the first day of his trial on the robbery charges. (See Id. at 26.)
Plaintiff contends that the sheriffs allegedly told him if he did not “plead guilty, we are going to
kill you in the cell.” (Id.) Plaintiff further alleges that one of the sheriffs told Plaintiff “not to
voice constitutional issues.” Id. at 53.
After Plaintiff was acquitted on March 27, 2012, the sheriffs at the Bergen County jail
allegedly punished Plaintiff and another man by locking them in their shared cell without
running water or a working toilet. (Id. at 24, 54.) The toilet backed up, and despite the
unbearable smell, the sheriffs refused to permit Plaintiff or his cellmate to change cells or use the
bathroom elsewhere. (Id. at 24.)
Plaintiff has also alleged a number of “separate but related clairn[sJ.” (Id. at 30.) Under
this category, Plaintiff has sued the judge that presided over his trial, alleging that the Honorable
Donald R. Venezia participated in the conspiracy to falsely imprison Plaintiff and citing to Judge
Venezia’s pretrial and trial rulings as evidence of that alleged participation. (Am. Compi. at 3132.)
Plaintiff has also sued the Defendant Joshua T. Buckner, his attorney that represented
him in pretrial proceedings, for telling Plaintiff’s family in 2008 that Plaintiff was guilty of the
2008 robbery, for refusing to file various motions on Plaintiff’s behalf, for depleting Plaintiff’s
$12,000 retainer, and seeking to withdrawal from the case before trial. (Am. Compl. at 58.)
Plaintiff alleges that Buckner participated in the conspiracy to convict him of the 2008 robbery
by telling Plaintiff that needed to cut off his dreadlocks, which was the very feature that
allegedly distinguished Plaintiff from actual perpetrator and the feature that Plaintiff believed

4

proved his innocence. (Id. at 33.) Plaintiff has also sued Buckner’s firm, Sunshine, Atkin,
Minassian, Tafuri & D’Amato, P.A., alleging that the named partners are responsible for the
conduct of Buckner. (Id. at 56).
Plaintiff has also sued the Office of the Public Defender in Bergen County, Louis
Acevedo, and James Gizzi. Plaintiff contends that the Office of the Public Defender has waged
“financial warfare” on him and reported him to various collection agencies. (Am. Compi. at 3742.) Acevedo likewise reported Plaintiff to collection agencies and told him he would need to
pay for his right to counsel. Plaintiff alleges the Gizzi, who appears to have represented him at
trial, “acted as a government mole, sabotaging [Plaintiff’s] defense from the inside.” (Am.
Compl. 39.) He contends that Gizzi sabotaged his defense by refusing to investigate the robbery,
refused to obtain police reports, videos, and pictures that would have exculpated him, and
refused to secure travel and accommodation for Plaintiff’s out-of-state witnesses. (Id.)
Finally, Plaintiff contends that a Bergen County Sheriff “Darn E. Dewitt defamated [sic]
my character in front of witnesses at the corners of Tiffany Avenue along River Vale Road in
N.J. on October 7, 2013.” (Am. Compl. at 55; see also id. at 26.) At the relevant time, Dewitt
was Plaintiff’s father’s neighbor. (Id. at 26.) According to Plaintiff, Dewitt became angry after a
tree from Plaintiff’s father’s yard fell in Dewitt’s yard, and Dewitt allegedly told Plaintiff’s
father, in front of witnesses, that he had arrested Plaintiff, a fact that Plaintiff disputes. (Id. at
26-27.)
Plaintiff alleges that he has suffered emotional distress and post-traumatic stress disorder
or PTSD as a result of the Defendants’ wrongdoing and seeks varying amounts of damages from
all Defendants. In addition, he seeks equitable relief from witnesses Betty Masariggo, Jennifer
Rose Rothenhousen, and David Potter. (Am. Compl. at 60.)

5

III.

ANALYSIS

A. Application for Default Judgment
On November 6, 2014, Plaintiff wrote to the Court “request[ingj the Court to issue
default Judgment against all Defendants” because Defendants failed to respond to the summons
issued by the Court on August 7, 2014. (No. 9.) In his application, Plaintiff does not indicate
whether he served the summons on any of the Defendants.
Entry of default and default judgment are governed by Federal Rule of Civil Procedure
55. Entry of default judgment is a two-step process. See Fed. R. Civ. P. 55(a), (b). A party
seeking to obtain a default judgment must first request that the Clerk of the Court “enter

...

the

default” of the party that has not answered the pleading or “otherwise defend[edl,” within the
time required by the rules or as extended by court order. Fed. R. Civ. P. 55(a). After a default
4
is entered against a party, the court may, pursuant to Fed. R. Civ. P. 55(b)(2), enter a default
judgment against a party who has failed to plead or otherwise defend. See Limehouse v.
Delaware, 144 F. App’x 921, 923 (3d Cir. 2005) (“[T]he District Court properly denied the
motion because Limehouse failed to obtain entry of default prior to seeking a default
judgment.”).

“An entry of default is a purely ministerial act carried out by a court clerk on request in cases in
which a defendant has ‘failed to plead or otherwise defend,” Sourcecorp Inc. v. Crone)’, 412
Fed.Appx. 455, 457 (3d Cir. 2011) (quoting Fed.R.Civ.P. 55(a)), and is not the same as a default
judgment. Joe Hand Promotions, Inc. V. Yakubets, 3 F.Supp.3d 261, 270, n. 5, No. 12-4583,
2014 WL 960787, at *4 n. 5 (E.D. Pa. Mar. 11, 2014).

6

Even where a Plaintiff seeks entry of default prior to seeking default judgment, the entry
of default will be set aside when the Complaint has not been properly served. See Gold Kist, Inc.
V.

Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985); Grand Entm’t Group, Ltd. v. Star Media

Sales, Inc., 988 F.2d 476, 493 (3d Cir. 1993) (holding that a default will be set aside if it was not
properly entered). Pursuant to Federal Rule of Civil Procedure 4, the Clerk of the Court must
issue a summons as to the defendant and the plaintiff must then serve the summons with a copy
of the complaint on the defendant. Plaintiffs bear the burden of proving sufficient service of
process, and when a plaintiff fails to properly serve a defendant with a summons and a complaint
in accordance with Rule 4, a default cannot stand and must be vacated. See Grand Entm’i
Group, 988 F.2d 476 at 493; In re Forrest, 403 F. App’x 768 (3d Cir.2010) (district court is not
required to order the United States Marshals Service to serve a complaint filed by an inmate
proceeding informa pauperis under Fed. R. Civ. P. 4(c)(3) until it had first screened the case
pursuant to 28 U.S.C.

§

l915A).

1-lere, the Court construes Plaintifrs application as a motion for default judgment and
denies that motion because he did not first seek entry of default and has not indicated that he
effected service on any of the Defendants.
B. Standard for Sua Sponte Dismissal
The Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104—134,

§

801—8 10, 110 Stat.

1 321—66 to 1321—77 (April 26, 1996), requires a district court to review a complaint in a civil
action in which a prisoner is proceeding informapauperis or seeks redress against a
governmental employee or entity. The Court is required to identify cognizable claims and to sua
sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

7

§

191 5(e)(2)(B) and 1915A. This action is subject to sua sponte screening for dismissal under

both 28 U.S.C.

§

1915(e)(2)(B) and

§

1915A.

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C.

§

1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal

Rule of Civil Procedure I 2(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir.20 12) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000)); Mitchell v. Beard, 492 F.
App’x 230, 232 (3d Cir.2012) (per curiam) (discussing 28 U.S.C.

§

1997e(c)(1)); C’ourteau v.

United States, 287 F. App’x 159, 162 (3d Cir.2008) (discussing 28 U.S.C.

§

1915A(b)).

Under Fed. R. Civ. P. 1 2(b)(6), the court must “accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be entitled to relief” Fleisher v.
Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012). The complaint must contain “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcrqji v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Allegations that are no
more than legal conclusions are not entitled to the same assumption of truth. Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir.2012). To determine if a complaint meets the pleading standard, the
Court must strip away conclusory statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give rise to an entitlement of relief.”
Id. (internal quotation marks omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqhcil, 556 U.S. at 678.

8

A complaint filed by a pro se litigant is to be liberally construed and held to a less
stringent standard than formal complaints drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants
still must allege sufficient facts in their complaints to support a claim.” Ma/a v. Crown Bay
Marina, Inc., 10—4710. 2013 WL 57895 at *4 (3d Cir. Jan. 7, 2013).
C. The “Short Plain Statement” Requirement of Rule 8
Before assessing the substance of Plaintiffs Amended Complaint, the Court addresses
the stream of consciousness styling of Plaintiffs pleading. Pursuant to the Federal Rules of Civil
Procedure, a pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint may generally be dismissed
for violating Rule 8 if it is also so rambling, unclear, or complicated so as to defy response. See,
e.g., In re Westinghouse Sec. Lirig., 90 F.3d 696, 703 (3d Cir. 1996) (“The second amended
complaint is unnecessarily complicated and verbose.”). In this regard, the Court notes that the
meandering nature of Plaintiffs amended complaint, its overlapping and confusing discussions
of Defendants and issues, and the inclusion of unrelated issues and digressions has made it
extremely difficult to construe his Amended Complaint. Going forward, the Court directs
Plaintiff to adhere to the mandate of Rule 8 and provide “a short and plain” statement of his
claim or claims.
D. Section 1983 Claims Against Immune or Non-Entities
From the outset, Plaintiff has sued a number of entities and individuals that must be
dismissed because they are immune or otherwise not amenable to suit under

9

§ 1983.

1. State of New Jersey
Plaintiff has sued the State of New Jersey contending that it “allowed the Bergen County
Prosecutor’s Office to maliciously prosecute (Plaintiff) following the 2008 robbery in
Westwood, New Jersey.” (Am. Compi. at 45.) The State of New Jersey, however, is not
amenable to suit under

§

1983. It is well-established that States are not “persons” within the

meaning of 1983. See Will v. Michigan Dep’t ofState Police, 491 U.S. 58, 71, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989). Further, Eleventh Amendment immunity “protects both states and state
agencies ‘as long as the state is the real party in interest.” Woodyard v. County qf Essex, 514
Fed. App’x 177, 182 (3d Cir. Mar. 5, 2013) (quoting Fitchik v. N.J. Transit Rail Operations, 873
F.2d 655, 659 (3d Cir. 1989) (en banc)). As such, Plaintiff’s claims against the State of New
Jersey are dismissed with prejudice.
2. The Bergen County Prosecutor’s Office
The Prosecutors Office is likewise not a person amenable to suit under

§

1983. See

Gordon v. Berkeley Twp. Police, No. 10—5061, 2011 WL 2580473, at *4 (D.N.J. June 27, 2011)
(holding that a “Prosecutor’s Office” is not a “person” within the meaning of a Section 1983 suit)
(citations omitted); Baker v. Lewis, No. 10—3438, 2010 WL 4117140, at *1 n. 1 (D.N.J. Oct.19,
2010) (same) (citations omitted). Additionally, the Prosecutors Office is immune from suit
under the Eleventh Amendment to the extent that it is an entity that could even potentially be
sued under

§

1983. See Woodyard, 514 Fed. App’x at 182. As such, Plaintiff’s suit against the

Bergen County Prosecutor’s Office is dismissed with prejudice.

In determining whether immunity applies, a court examines: “(1) the source of the money that
would pay for the judgment; (2) the status of the entity under state law; and (3) the entity’s
degree of autonomy.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 198
1978 (3d Cir. 2008).
10

3. The Prosecutor Defendants are Immune
Plaintiff has sued four Bergen County Prosecutors

—

John Molinelli, Natalie Suarez

Candella, Maria Rockfol, and James Donohue (“Prosecutor Defendants”)—for their individual
roles in prosecuting Plaintiff for the 2008 robbery. The Prosecutor Defendants, however, are all
immune from suit under

§

1983 for conduct stemming from the prosecution of Plaintiff. “[A]

state prosecuting attorney who act[s] within the scope of his duties in initiating and pursuing a
criminal prosecution” is not amenable to suit under

§

1983. Imbler v. Pachiman, 424 U.S. 409,

410 (1976). See also Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992); Schrob v.
Catterson, 948 F.2d 1402, 1417 (3d Cir. 1991); Schrob v. Canerson, 948 F.2d 1402, 1417 (3d
Cir. 1991); Rose v. Bartle, 871 F.2d 331, 345 and n. 12 (3d Cir. 1989). Since Imbler, the
Supreme Court has held that “absolute immunity applies when a prosecutor prepares to initiate a
judicial proceeding, or appears in court to present evidence in support of a search warrant
application.” Van de Kamp

V.

Goldstein, 555 U.S. 335, 343 (2009) (citations omitted); see also

LeBlanc v. Stedman, 483 F. App’x 666 (3d Cir. 2012). “[A]cts undertaken by a prosecutor in
preparing for the initiation ofjudicial proceedings or for trial, and which occur in the course of
his role as an advocate for the [government], are entitled to the protections of absolute
immunity.” Buckley v. Fiizsi,nmons, 509 U.S. 259, 273 (1993). Prosecutors also are absolutely
immune from a civil suit for damages under

§

1983 for: (1) instituting grand jury proceedings

without proper investigation and without a good faith belief that any wrongdoing occurred,
Schroh, 948 F.2d at 1411; Rose v. Barule, supra; (2) initiating a prosecution without a good faith
belief that any wrongdoing has occurred, Kuiwicki, 969 F.2d at 146364; (3) soliciting false
testimony from witnesses in grand jury proceedings, probable cause hearings, and trials, Burns,
500 U.S. at 490; Kulwicki, 969 F.2d at 1467; and (4) the knowing use of perjured testimony in a
judicial proceeding, 1mb/er, 424 U.S. at 424-27; Schroh, 948 F.2d at 1417; Brawer v. Horowitz,
11

535 F.2d 830 (3d Cir. 1976). “[A]bsolute immunity applies when a prosecutor prepares to
initiate a judicial proceeding, or appears in court to present evidence in support of a search
warrant application.” Van de Kamp v. Goldstein, 555 U.S. 335, 343, 129 S.Ct. 855, 172 L.Ed.2d
706 (2009) (citations omitted) (further holding that a supervisory prosecutor is absolutely
immune for failing to adequately train and supervise district attorneys on the duty not to
withhold impeachment evidence and the failure to create any system for accessing information
pertaining to the benefits provided tojailhouse informants). A falsely-charged defendant may be
“remedied by safeguards built into the judicial system,” such as dismissal of the charges.
Kuiwicki, 969 F.2d at 1464.
Here, Plaintiff alleges that the prosecutor Defendants, wrongfully pursued criminal
charges against him, failed to present exculpatory evidence and made other false statements to
the grand jury, tampered with witnesses, used false and misleading evidence to prosecute
Plaintiff, and engaged in myriad misconduct during the trial. (See generally Am. Compl. 4-Il.)
However, Plaintiff fails to allege facts that any of the prosecutor Defendants were acting outside
their official prosecutorial roles. Thus, under well-settled law, the prosecutor defendants are
protected by immunity from a damages lawsuit for conduct during pre-trial and trial proceedings.
As such, the claims against the prosecutor Defendants are dismissed with prejudice.
4. Westwood Police Department and Bergen County Sheriffs Department

The Westwood Police Department and Bergen County Sheriff’s Department are also not
subject to suit under

§

1983. In New Jersey, a municipal police department is not an entity

separate from the municipality. See N.J. Stat. Ann.

§ 40A:

14-118 (municipal police department

is “an executive and enforcement function of municipal government”). As such, the Westfield
Police Department and the Bergen County Sheriff’s Department are not proper defendants in this
action. See Padilla v. Twp. of Cherry Hill, 110 F. Appx. 272, 278 (3d Cir. 2004) (“In Section
12

1983 actions, police departments cannot be sued in conjunction with municipalities, because the
police department is merely an administrative arm of the local municipality, and is not a separate
judicial entity.”) (quoting DeBellis v. Kuip, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001)); Aycox v.

City of Elizabeth, 2009 U.S. Dist. LEXIS

111345, at *7 (D.N.J. Dec. 1,2009) (“Because the

Police Department is merely an arm of the Township, Plaintiffs claim against the department
cannot stand.”); Godley v. Newark Police Dep ‘t, 2007 U.S. Dist. LEXIS 5718, at *8 (D.N.J. Jan.
26, 2007) (same).
As a court in this District recently explained:
A New Jersey police department is not an independent entity with
the capacity to sue and he sued, but only “an executive and
enforcement function of municipal government.” N.J.S.A.
40A:14—l 18. The case law under Section 1983 uniformly holds
that the proper defendant is therefore the municipality itself, not
the police department. See Jackson v. City ofErie Police Dep’t,
570 F. App’x 112, 114 (3d Cir. 2014) (per curiam; not
precedential) (“We further agree with the District Court that the
police department was not a proper party to this action. Although
local governmental units may constitute ‘persons’ against whom
suit may be lodged under 42 U.S.C. § 1983, a city police
department is a governmental sub-unit that is not distinct from the
municipality of which it is a part.”) (citation omitted). See also
Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997)
(Court “treat[s] the municipality and its police department as a
single entity for purposes of section 1983 liability”); Michaels v.
State ofNew Jersey, 955 F. Supp. 315, 329 n. 1 (D.N.J. 1996).
Rivera v. Zwiegle, No. 13—3024, 2014 WL 6991954, at *3 (D.N.J. Dec. 09, 2014).
Here, Plaintiff has not sued municipalities themselves and cannot maintain his

§

1983 claims

against the Westwood Police Department or the Bergen County Sheriff’s Department.
5. The Honorable Donald R. Venezia

Plaintiff has also sued the Judge that presided over his robbery trial. Plaintiff’s claims
against Judge Donald R. Venezia is based on his management of Plaintiff’s case and legal rulings

13

during pretrial and trial proceedings. (Am. Compl. at 31-32.) Judges are absolutely immune
from liability in civil actions, including section 1983 actions, for their judicial acts. Dennis v.
Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). “Judicial immunity is an
immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.s.
9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Both judges of general and limited jurisdiction,
including magisterial judges, are entitled to judicial immunity. See Figueroa v. Blackburn, 208
F.3d 435, 441 (3d Cir. 2000) (concluding that magisterial district judges, even though they
preside over courts of limited jurisdiction, are entitled to protections ofjudicial immunity).
There are only two circumstances in which a plaintiff can overcome judicial immunity:
“First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the
judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature,
taken in the complete absence of all jurisdiction.” Mire/es, 502 U.S. at 11—12 (internal citations
omitted). In determining whether judicial immunity applies, the court “must decide whether the
Complaint set forth allegations that, taken as true, establish that the application of an exception
to the doctrine of absolute judicial immunity is above the speculative level.” Kirkland v. DiLeo,
581 F. App’x 111, 114—15 (3d Cir. 2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Here, Plaintiff has presented no facts to suggest that he can overcome the bar ofjudicial
immunity, and, as such, his claims against Judge Venezia are dismissed with prejudice.
6. The Office of the Public Defender, Louis Acevado, and Gizzi
To the extent Plaintiff also asserts a Section 1983 claim for monetary damages against the
Public Defender’s Office or its attorneys arising from their roles as defense counsel, his claim
fails because it lacks an essential element of a claim under 42 U.S.C.

14

§ 1983 action under
—

color of State law. “A defense attorney ‘does not act under color of state law when performing a
lawyer’s traditional functions as counsel in a criminal proceeding.” Xenos v. Slojund, 424 F.
App’x 80,81 (3d Cir. 2011) (per curiam) (citing Polk C’nty. v. Dodson, 454 U.S. 312, 325, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981)); see also Vermont v. Brillon, 556 U.S. 81, 91, 129 S.Ct. 1283,
173 L.Ed.2d 231(2009) (“Unlike a prosecutor or the court, assigned counsel ordinarily is not
considered a state actor”); Calhoun v. Young, 288 F. App’x 47, 49 (3d Cir. 2008) (public
defender representing criminal defendant is not acting under color of state law); see also Gause
v. Haile, 559 F. App’x 196, 198 (3d Cir. 2014); Nelson v. Hughes, No. 07—5756, 2008 WL
5046767, at

*

3 (D.N.J. Nov. 20, 2008) (public defender appointed to represent plaintiff in his

civil commitment hearing was not acting “under color of state law” for purposes of Section
1983)). Furthermore, the Public Defender’s Office is not a “person” as defined under

§

1983 and

thus, cannot be sued under that statute. Will, 491 U.S.at 71.
To the extent Plaintiff’s allegations concern the traditional functions of a defense
attorney, the public defender Defendants were not acting under color of state law and the
Amended Complaint fails to state a claim under 42 U.S.C.

§

1983. The Public Defender’s Office

is dismissed with prejudice because it is not a person subject to suit under

§

1983.6

Plaintiff’s allegations regarding Defendant Louis Acevedo and James Gizzi are particularly
convoluted and thus difficult to construe. Among the types of conduct alleged are claims that
Acevedo violated his Sixth Amendment right to counsel by (1) attempting to force Plaintiff to
sign a contract to pay for the legal services rendered by the Public Defender and (2) reporting
him to various credit agencies. He similarly contends that Defendant James Gizzi attempted to
force Plaintiff to sign an agreement to pay for the legal services rendered to him. In this regard,
the Court notes that New Jersey Public Defender Act includes reimbursement and lien
provisions. See N.J.S.A. 2A:l58A-16, 158A-17. These provisions have been deemed valid
under state law. See Strojnski v. Office ofPublic Defender, 134 N.J. Super. 21 (App. Div. 1975).
The provisions provide that if a defendant has the means to pay for services, he shall be required
to reimburse the Public Defender’s Office in such amounts as he may reasonably be expected to
pay. The provisions also note that a defendant’s ability to pay would have no effect on the
rendering of services. See Calhoun v. Young, No. 07-3691, 2007 WL 2462621, at *1 fnl (D.N.J.
6

15

7. Trial Witnesses have absolute Immunity from Claims Based on their Testimony
Most of Plaintiff’s allegations of wrongdoing center on allegedly false or coerced
testimony offered by witnesses at pretrial and trial proceedings. A trial witness, including a
police officer, sued under

§

1983 has absolute immunity with respect to any claim based on the

witness’s testimony. Briscoe v, LaHue, 460 U.S. 325, 326 (1983). Without this rule, witnesses
would be reluctant to testify and “might be inclined to shade [their] testimony in favor of the
potential plaintiff [for] fear of subsequent liability.” Id. at 332—33. The Briscoe rule applies both
at the trial and pre-trial stages of litigation. See Rehberg v. Paulk, 132 S.Ct. 1497, 1505, 182
L.Ed.2d 593 (2012) (grand jury proceedings).
Here, Plaintiff broadly alleges that his constitutional rights were violated by the
presentation of fabricated evidence through perjured and coerced testimony. In Briscoe, the
plaintiffs were each convicted based upon the alleged perjured testimony of the defendant police
officers and, later, brought

§

1983 claims against the officers based upon their perjured

testimony. 460 U.S. at 326—27. The Supreme Court found that subjecting government officials,
such as police officers, to liability under

§

1983 for their testimony might undermine not only

their contribution to the judicial process but also the effective performance of their other public
duties, Briscoe, 460 U.S. at 343, and held that testif’ing police officers could not be held liable
under

§

1983 for claims premised upon their alleged perjured testimony. Id. at 326; Peteete v.

Asbury Park Police Department, F. App’x. 887, 889 (3d Cir. 2012) (affirming dismissal of
1 983 claim against police detective based upon perjured testimony because the claim was barred
by absolute immunity); Harper v. Pennsylvania, 2013 WL 4718952, *2 (E.D. Pa. Sept.3, 2013)

Aug. 27, 2007) (explaining same). I consider Plaintiff’s conspiracy claims against these
Defendants in section E(l)(f).
16

(dismissing

§

1983 claims against police officer based upon perjured testimony because claims

were subject to absolute immunity).
Here, to the extent Plaintiff states claims against any remaining witness Defendants, these
Defendants have absolute immunity for any claims based upon their testimony during grand jury
and trial proceedings. This includes the police officer defendants and private parties that
testified against Plaintiff at trial. Notably, the claims against Defendants Betty Mastariggo and
Jennifer Rose Rothenhausen appear to be premised entirely on their allegedly false trial
testimony, and as such, the claims against Defendants Mastariggo and Rothenhausen are
dismissed.
F. Timeliness of Plaintiff’s Section 1983 and State Law Claims

Because it is apparent on the face of Plaintiff’s Amended Complaint that Plaintiffs
claims arise out of events that occurred in 2008 or earlier, the Court next addresses the statute of
limitations and finds that Plaintiffs claims that clearly accrued prior to February 18, 2012 are
time barred. “Although the running of the statute of limitations is ordinarily an affirmative
7
defense, where that defense is obvious from the face of the complaint and no development of
the record is necessary, a court may dismiss a time-barred complaint sua sponte under 28 U.S.C.

§

1915(e)(2)(B)(ii) for failure to state a claim.” Ostuni v. Wa Wa’s Mart, 532 F. App’x 110, 112

(3d Cir. 2013) (citing Fogle v. Peirson, 435 F.3d 1252, 1258 (10th Cir. 2006)); Hunterson v.
Disahato, 244 F. App’x 455, 457 (3d Cir. 2007) (per curiam).

The statute of limitations is an affirmative defense that generally must be raised by the
defendant, and it is waived if not properly raised. See Benak ex ret. Alliance Premier Growth
Fund v. Alliance Capital Mgmt. LP., 435 F.3d 396, 400 n. 14 (3d Cir. 2006); Fasseit v. Delta
Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986).
17

1. Plaintiff’s Section 1983 Claims
“To state a claim under

§ 1983, a plaintiff must show that the defendant, through conduct

sanctioned under the color of state law, deprived [him or] her of a federal constitutional or
statutory right.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). The Court construes
Plaintiff’s Amended Complaint to allege Fourth Amendment claims for false arrest, false
imprisonment, malicious prosecution, and conspiracy arising from the 2008 robbery charges.
The Court additionally construes Plaintiff’s Amended Complaint to allege Fourteenth
Amendment conditions of confinement claims arising out of his detention in connection with the
2008 robbery, Fourth Amendment Claims of unlawful search and seizure related to the search of
his residence and theft of his property in 2009, and a Monell claim.
8
The state statute of limitations for personal injury actions applies to all Section 1983
claims. Wilson v, Garcia, 471 U.S. 261, 280 (1985). In New Jersey, the applicable statute of
limitations period is two years. Cito v. Bridgewater Twp. Police Dept., 892 F.2d 23, 25 (3d Cir.
1989); see N.J.S.A. 2A:l4-2 (New Jersey statute of limitations of 2 years for “actions for injury
to persons by wrongftil action,”). Although the statute of limitations period is borrowed from the
law of the forum state, federal law governs the accrual of such an action. Willz v. Middlesex
County Office ofProsecutor, 2006 WL 1966654, at *4 (D.N.J. Jul. 12, 2006) (citations omitted).
Under federal law, a Section 1983 cause of action begins to accrue when the plaintiff knows, or
has reason to know, of the injury on which the action is based. Mullen v. Port Authority ofNew
York and New Jersey, 100 F.Supp.2d 249, 260 (D.N.J. 1999) (citing Montgomery v. DeSimone,

Given the convoluted and voluminous nature of Plaintiff’s Amended Complaint, it is difficult
to construe Plaintiff’s claims. For that reason, the Court addresses only those federal claims
apparent from the face of the Amended Complaint. To the extent that Plaintiff intended to bring
claims not addressed in this Opinion, including state-law claims, the Plaintiff may do so, in a
clear and specific fashion, in an amended complaint.
18

159 F.3d 120, 126 (3d Cir. 1998)); see also Deary v. Three Un-Named Police Officers, 746 F.2d
185, 193 (3d Cir. 1984).
a. False Arrest and False Imprisonment

Plaintiff’s claims for false arrest and imprisonment arising from the 2008 robbery are
time-barred. “To state a claim for false arrest under the Fourth Amendment, a plaintiff must
establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause.”
James v. City of Wilkes—Barre, 700 F.3d 675, 680 (3d Cir. 2012). For claims of unlawful arrest,
the “statute begins to run at the time the claimant becomes detained pursuant to legal process.”
Wallace v. Kato 549 U.S. 384, 397 (2007); Dique v. New Jersey Slate Police, 603 F.3d 181, 188
(3d Cir. 2010). A claim of false arrest, and the accompanying claim for false imprisonment,
begins to accrue immediately upon the arrest at issue. Wallace v. Kato, 549 U.S. 384, 3 89—90 &
n. 3, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Singleton v. DA Philadelphia, 411 F. App’x 470,
472 (3d Cir. 2011) (ruling that accrual of a claim for false arrest occurred on the date that the
plaintiff “was arrested and charges were filed against him”); Alexander v. Fletcher, 367 F. App’x
289, 290—91 (3d Cir. 2010) (affirming the district court’s conclusion that a

§

1983 false arrest

claim began to accrue on the date of arrest). Nevertheless, while the claim accrues upon arrest,
the statute of limitations does not begin to run at the same time. Instead, the statute of limitations
for a false arrest/imprisonment claim begins to run “when the individual is released, or becomes
held pursuant to legal process,” i.e., is arraigned. Alexander v. Fletcher, 367 F. App’x at 290 n. 2
(citing Wallace, 549 U.S. at 389-90). Here, Plaintiff’s

§

1983 claims premised on his false arrest

and/or false imprisonment arising out of his 2008 arrest for robbery are barred because they
accrued, at the latest, at the time he was arraigned on the robbery charges, which was more than
two years before he brought the instant complaint.

19

b. Conspiracy to Falsely Arrest and Imprison Plaintiff
“To demonstrate a conspiracy under

§

1983, a plaintiff must show that two or more

conspirators reached an agreement to deprive him or her of a constitutional right ‘under color of
law.” Parkway Garage, Inc. v. City ofPhila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated on
other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d
Cir. 2003). Plaintiff’s allegations of conspiracy, however, do not preserve claims that are
otherwise time barred, because a civil conspiracy cause of action accrues at the time of each
overt act challenged. See Wells v. Rockefeller, 728 F.2d 209, 217 (3d Cir. 1984); Cf Sandutch
v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (per curiam) (with regard to a claim alleging a
conspiracy to secure false testimony, contemporaneous knowledge of false testimony led to
accrual of cause of action, even if the plaintiff “may not have known all the facts necessary” to
establish a conspiracy). Thus, to the extent that the Plaintiff wishes to “revive time-barred
injuries” through allegations of conspiracy, he may not do so. Wells, 728 F.2d at 217; see also
Graffv. Kohlman, 28 F. App’x 151, 154 (3d Cir. 2002) (rejecting the contention that later
conduct “establishe[d] a ‘continuing conspiracy’ against [the plaintiff] that makes his April 4,
1999 filing timely” for harms dating from 1992 and 1993). As such, conspiracy claims arising
from his false arrest and imprisonment in 2008 are dismissed as time-barred.
9
c. Conditions of Confinement Claims Arising from Detentions in 2008
Plaintiff alleges a number of violations arising out of his pretrial detention in connection
with the 2008 robbery. “The Constitution mandates that prison officials satisfy inmates’ ‘basic
human needs

—

e.g., food, clothing, shelter, medical care, and reasonable safety.” Duran v.

The Court discusses Plaintiff’s conspiracy claim relating to his claim for malicious prosecution
in the next section below.
20

Merline, 923 F.Supp.2d 702, 719 (D.N.J. 2013) (quoting Helling v. MeKinney, 509 U.S. 25, 32,
113 S.Ct. 2475, 125 LEd.2d 22 (1993)) (citation omitted). As he was a pretrial detainee at the
time of the challenged actions, Plaintiff’s condition of confinement claims are analyzed under the
Fourteenth Amendment as opposed to the Eighth Amendment. See Hubbard v. Taylor, 538 F.3d
229, 231 (3d Cir. 2008) (explaining that due process clause of the Fourteenth Amendment
prohibits prison officials from imposing conditions that amount to punishment of a pretrial
detainee.). Whether analyzed through the Eighth or Fourteenth Amendment, Plaintiff’s claims
accrued when Plaintiff knew or had reason to know, of the injury on which the action is based.
See Mullen v. Port Authority ofN.Y. and N.J., 100 F.Supp.2d, 249, 260 (D.N.J. 1999) (citing
Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998)). As such, the limitations period on
each of those claims began to run at the time Plaintiff was allegedly mistreated. As such all
claims arising from his alleged mistreatment by the Westwood Police and Bergen County
Sheriffs in 2008 (see Am. Compl. at 53-54) are likewise barred by the statute of limitations.
d. Destruction and Theft of Plaintiff’s Property Occurring in 2009

Plaintiff’s claims arising from the 2009 search of his residence are similarly time barred.
With respect to claims of unlawful search and seizure, “courts will generally find that the
plaintiff knew of the injury, and thus the cause of action accrued, on the day the search and/or
seizure took place.” MacNamara v. Hess, 67 F. App’x 139, 143 (3d Cir. 2003) (noting that the
plaintiff was present on the date of the search and who did not contend that he did not have
contemporaneous knowledge of the search). Likewise, the continuing unlawful possession of a
Plaintiff’s property does not amount to a continuing violation but rather is a consequence of the
original unlawful seizure. Id. Here, it is unclear whether Plaintiff was present when his home
was unlawfully searched, but he does not allege otherwise or contend that he only became aware

21

of the search on after February 18, 2012

—

two years prior to the filing of his complaint here. As

such, Plaintiff’s claims that members of the Bergen County Sheriff’s Department unlawfully
searched his home in 2009 and damaged and stole his property during that search (see Am.
Compl. at 54) are likewise barred by the statute of limitations.
e. Potential Monell Claim
To the extent Plaintiff has attempted to allege a Monell claim, that claim would also be
time-barred. “[A] local government may not be sued under

§ 1983 for an injury inflicted solely

by its employees or agents.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.
1990). Instead, it is when “execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury” that the government as an entity is responsible under

§ 1983. Id (citations omitted).

“A government policy or custom can be established in two ways. Policy is made when a
‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.” Andrews, 895 F.2d at 1480 (quoting
Pembaurv. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292,89 L.Ed.2d 452 (1986)). “A
course of conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such
practices of state officials [are] so permanent and well settled’ as to virtually constitute law.”
Andrews, 895 F.2d at 1480 (quoting Monell, 436 U.S. at 690).
Even if Plaintiff had sufficiently alleged a Monell claim (which he has not), that claim is
based on events that occurred in 2002 through 2008, and is thus barred by the applicable two
year statute of limitations.

22

f.

Malicious Prosecution and Conspiracy to Maliciously Prosecute

The Court next addresses Plaintiff’s claims for malicious prosecution and conspiracy to
maliciously prosecute Plaintiff. Unlike the claims described above, the statute of limitations for
a malicious prosecution claim under Section 1983 accrues on the day that the criminal
proceedings against a plaintiff are terminated in his or her favor.

Torres v. McLaughlin, 163

F.3d 169, 177 (3d Cir. 1998); see also Kossler v. Crisanti, 564 F.3d 1 81, 1 86—87 (3d Cir. 2009);
see also Ginter v. Skahill, 298 F. App’x. 161, 163 (3d Cir. 2008) (“When false arrest is the basis
of the

§

1983 action, the statute of limitations normally begins to run at the time of arrest.

Claims alleging malicious prosecution do not accrue until charges are dismissed.”)(citing
Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) and Smith

v.

Holtz, 87 F.3d 108,

111 (3d Cir. 1996)) (internal quotations omitted). As such, Plaintiff’s claim for malicious
prosecution did not accrue until he was acquitted, which, according to his Amended Complaint,
occurred on or about March 27, 2012.
Plaintiff’s conspiracy claim arising from his alleged malicious prosecution is likewise not
untimely because like the

§

1983 claim for malicious prosecution, the conspiracy claim did not

accrue until the prosecutions were terminated. See Rose v. Bartle, 871 F.2d 331, 352 (3d Cir.
1989) (“it is difficult to see how a cause of action for conspiracy to prosecute maliciously could
have accrued before that date” the malicious prosecution claim accrued); see also Wiltz v.
The Court notes that Plaintiff’s Complaint does not state facts suggesting that the continuing
violations doctrine is applicable to any of Plaintiff’s time-barred claims. The continuing
violations doctrine is an equitable exception to a strict application of a statute of limitations
where the conduct complained of consists of a pattern that has only become cognizable as illegal
over time. Foster v. Morris, 208 F. App’x 174 (3d Cir. 2006) (citing Cowell v. Palmer Twp., 263
F.3d 286, 292 (3d Cir. 2001)). “[Clauses of action that can be brought individually expire with
the applicable limitations period.” Livingston ex rel. Livingston v. Borough ofMcKees Rocks,
223 F. App’x 84 (3rd Cir. 2007) (citing O’Connor v. City ofNewark, 440 F.3d 125, 128 (3d Cir.
2006)).
°

23

Middlesex Cnty. Office, 249 F. Appx. 944, 949 (3d Cir. 2007). The Court therefore treats
Plaintiff’s malicious prosecution and conspiracy to maliciously prosecute claims as timely for
purposes of sua sponle screening and next assesses whether Plaintiff has stated a claim for relief
against any of the remaining Defendants.
A claim for malicious prosecution in violation of the Fourth Amendment has the
following elements: “(I) the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in the plaintiffs 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 a deprivation of liberty consistent with the concept of seizure as a
consequence of a legal proceeding.” DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d
2003)))1 Each element
Cir. 2005) (citing Estate ofSmith v. Marasco, 318 F.3d 497, 521 (3d Cir.

is to be examined separately and care must be taken not to conflate the distinct showing and
separate interests that are served by these separate requirements. Kossler v. Crisanhi, 564 F.3d
181, 194 (3d Cir. 2009) (en bane).
Plaintiff must plead sufficient facts to create a plausible showing that the elements of the
claim are present and permit a reasonable expectation that discovery will generate evidence to
support each element. See Kossler, 564 F.3d at 186—87 (presenting a Fourth Amendment
malicious prosecution claim to a jury requires sufficient evidence to support each of the five
elements); Gieman v. State Farm MutualAuto Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (to
survive a motion to dismiss “a complaint must contain sufficient factual matter, accepted as true,

Malicious prosecution claims brought under § 1983 can be based upon either the Fourth
Amendment or the Fourteenth Amendment procedural due process clause, but not under the
Fourteenth Amendment substantive due process clause. See Merkie v. Upper Dublin Sch. Disi.,
211 F.3d 782, 792 (3d Cir. 2000).
24

to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”). The preferred approach is to consider each
element in sequential order; if the claim fails at any step, consideration of the remaining elements
is unnecessary. Kossler, 564 F.3d at 186—87.
Although prosecutors typically initiate proceedings against criminal defendants, liability
for malicious prosecution can also attach when “[a] defendant influences a third party to initiate
the proceedings.” Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa. 2000) (citing Gilbert
v. Feld, 788 F. Supp. 854, 861 (E.D. Pa.1992)). Notably, a law enforcement officer may be
liable for malicious prosecution where he “influenced or participated in the decision to institute
criminal proceedings.” Halsey v. Pfeifjr, 750 F.3d 273, 297 (3d Cir. 2014) (citing Sykes v.
Anderson, 625 F.3d 294, 308—09, 317 (6th Cir.2010)) accord Henderson v. City of

Philadelphia, 853 F.Supp.2d 514, 518 (E.D. Pa. 2012) (“Although prosecutors rather than police
officers are generally responsible for initiating criminal proceedings, an officer may

...

be

considered to have initiated a criminal proceeding if he or she knowingly provided false
information to the prosecutor or otherwise interfered with the prosecutor’s informed discretion.”)
(citing Brockington v. City ofPhiladelphia, 354 F.Supp.2d 563, 569 (E.D. Pa. 2005)). As the
Third Circuit recently reiterated, “[i]t is settled law that ‘officers who conceal and misrepresent
material facts to the district attorney are not insulated from a
prosecution simply because the prosecutor [and] grandjury.

1983 claim for malicious

§
.

.

act independently to facilitate

erroneous convictions.” Halsey, F.3d at 297 (citing Pierce v. Gilchrist, 359 F.3d 1279, 1292
(10th Cir.2004), Ricciuti v, N. Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997), and .Jones
Cily of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)).

25

V.

After construing the allegations in the Amended Complaint in the light most favorable to
Plaintiff and relying on the recent guidance provided by the Third Circuit in Halsey, Plaintiffs
malicious prosecution claim against Detective James Mc Morrow, Officer Michael Pontillo,
Detective Robert Saul, Jr., Robert DelCorpo, Sergeant John Murphy, and Karen Eramo shall
proceed past the sua sponle dismissal stage. Plaintiff has not, however, adequately alleged a
malicious prosecution claim against Police Chief Frank Regina, Officer Robert Held, Sargent
Gerard Fortunat, or Sergeant Hucheson. Likewise, Plaintiff has not pleaded any facts indicating
that Defendants David George Potter, Betty Mastariggo, Jennifer Rose Rothenhousen, all of
whom are private citizens, influenced or participated in the decision to institute proceedings
against Plaintiff. To the extent these individual Defendants are not immune from suit as trial
witnesses, Plaintiff has failed to plead facts that could render any of them liable for malicious
prosecution. Nor has Plaintiff pleaded any facts showing that Joshua Buckner, the law firm of
Sunshine, Atkins, Minassian, Tafuri, & D’Amato, Louis Acevado or James Gizzi had any role in
initiating a criminal proceeding against Plaintiff. Plaintiffs malicious prosecution claim is
dismissed without prejudice as to all these Defendants.
‘[‘he Court next analyzes Plaintiff’s conspiracy brought in connection with his claim of
malicious prosecution. As stated above, for a plaintiff to establish a proper

§ 1983 civil

conspiracy claim, he or she must allege that “persons acting under color of state law conspired to
deprive him of a federally protected right.” Perano v. Twp. Of Tilden, 423 F. App’x. 234 (3d
Cir. 2011). Just as with

§ 1985(3) claims, a conspiracy claim under § 1983 requires a “meeting

of the minds,” and to survive a motion to dismiss, plaintiffs must provide some factual basis to
support the existence of the elements of a conspiracy, namely, agreement and concerted action.
Starizell v. City ofPhiladelphia, 533 F.3d 183, 205 (3d Cir. 2008) (quoting Adickes v. S.H. Kress

26

& Co., 398 U.S. 144, 158,90 S.Ct. 1598,26 L.Ed.2d 142 (1970)); Capogrosso, 588 F.3d at 185.
“[TJhe bare allegation of an agreement is insufficient to sustain a conspiracy claim.” Brown v.
Deparlos, 492 F. App’x 211, 215 (3d Cir. 2012) (per curiam) (citing Abbott

i

Latshaw, 164 F.3d

141, 148 (3d Cir. 1998)); see also Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991)
(affirming the dismissal of “conspiracy claims [that] do not appear to be based in fact, but merely
upon

...

own suspicion and speculation”). It is insufficient to allege that “the end result of the

parties’ independent conduct caused plaintiff harm or even that the alleged perpetrators of the
harm acted in conscious parallelism.” Novellino v. N.J. Dep’t of Corr. Mountainview Youth,
2011 U.S. Dist. LEXIS 85209, 2011 WL 3418201 (D.N.J. Aug. 3,2011), *15 (citing Spencer v.
Steinn2an, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997)).
The Supreme Court has held that so long as the requirement of state action is otherwise
satisfied, private parties involved in conspiracies to violate someone’s constitutional rights may
be held liable for conspiracy:
[A] private party involved in such a conspiracy, even though not an
official of the State, can be liable under [Section] 1983. Private
persons, jointly engaged with state officials in the prohibited
action, are acting ‘under color’ of law for purposes of the statute.
To act ‘under color’ of law does not require that the accused be an
officer of the State. It is enough that he is a willful participant in
joint activity with the State or its agents[.j
Adickes v. S.H Kress & Co., 398 U.S. 144, 152,90 S.Ct. 1598,26 L.Ed.2d 142 (1970) (holding
that the defendant restaurant could be charged with acting under color of state law if the
defendant had an “understanding” with a city policeman to deny plaintiff service or to cause
plaintiffs subsequent arrest due to her association with black people) (internal citations and
quotation marks omitted); see also Dennis v. Sparks, 449 U.S. 24, 27—28, 101 S.Ct. 183, 186, 66
L.Ed.2d 185 (1980) (private party linked to judge in corrupt conspiracy a state actor); Kach

27

V.

Hose, 589 F.3d 626, 646 (3d Cir. 2009) (noting that “private party [who] has acted with the help
of or in concert with state officials” may be treated at state actor)]. Thus, under the conspiracy
theory, a private party may be liable under 42 U.S.C.

§

1983 if he was acting “in concert” with

public officials. Further, the requisite state action may be found even if the state actor with
whom the private individual allegedly conspired is himself immune from suit. See Dennis, 449
U.S. 24, 27-29. Likewise “[Plublic defenders are not immune from

§

1983 liability when they

conspire with state officials to deprive their client of federal rights.” Figueroa v, Clark, 810
F.Supp. 613, 616 (E.D. Pa. 1992); Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d
758 (1984).
Here, Plaintiff make numerous conclusory statements about a large-scale “conspiracy” to
maliciously prosecute him for the 2008 robbery and has described the independent conduct of the
individual Defendants, but he has not sufficiently pleaded the elements of agreement and
concerted action. As the Supreme Court explained in Twombly, 550 U.S. at 556, “terms like
‘conspiracy,’ or even ‘agreement,’ are border-line: they might well be sufficient in conjunction
with a more specific allegation
inferring a tacit agreement,

.

.

.

—

for example, identifying a written agreement or even a basis for

but a court is not required to accept such terms as a sufficient

basis for a complaint.” Id. at 557; see also Aibrechi v. Hamilton, 233 F. App’x. 122, 124-25 (3d
Cir. 2007) In this case, Plaintiffs Amended Complaint does not set forth the required elements
of agreement and concerted action and does not set forth a plausible basis for inferring such an
agreement and is thus insufficient to state a claim. As such, the conspiracy claim in connection
with Plaintiff’s malicious prosecution claim is dismissed without prejudice, and Plaintiff may
submit an amended Complaint to cure these deficiencies.

28

g. Additional

§

1983 Claims Arising from Plaintiff’s 2012 Trial and Acquittal

Plaintiff additionally alleges that “[tiwo unknown Berger [sic] County sheriffs threatened
my life 3-14-12 in the Hackensack Superior Court House in N.J.” (See Am. Compl. at 53.) This
threat allegedly occurred on the first day of trial. (See Id. at 26.) Plaintiff contends that the
sheriffs allegedly told him if he did not “plead guilty, we are going to kill you in the cell.” (Id.)
Plaintiff further alleges that one of the sheriffs told Plaintiff “not to voice constitutional issues.”
id. at 53.

After Plaintiff was acquitted on or around March 27, 2012, the sheriffs at the Bergen

County jail punished Plaintiff for his acquittal by locking him and another man in their shared
cell without running water or a working toilet for a week, (Id. at 24, 54.) The toilet backed up
and, despite the unbearable smell, the sheriffs refused to permit Plaintiff or his cellmate to
change cells or use the bathroom elsewhere. (Id. at 24.) For purposes of screening, the Court
construes Plaintiff to allege claims for retaliation under

§

1983 and finds that these claims

survive screening. The Court also construes Plaintiff’s post-acquittal allegation that he was
locked in a his cell for a week without running water or a working toilet to state a Fourteenth
Amendment conditions of confinement claim, and finds that that claim likewise survives
screening.
2. Plaintiff’s “Separate but Related” State-law Claims
a. State Law Claims against his Retained Counsel
Plaintiff also alleges state law claims against Defendant Buckner and Buckner’s law firm
of Sunshine, Atkin, Minassian, Tafuri & D’Amato, P.A. Plaintiff Amended Complaint alleges
that Buckner told Plaintiff’s family that he was guilty of the 2008 robbery, breached his
obligation of confidentiality on a number of occasions, refused to follow Plaintiff’s directions,
took on the representation of Plaintiff despite a conflict of interest and improperly sought to be

29

relieved as Plaintiff’s counsel prior to trial, and depleted Plaintiff’s retainer by overcharging
Plaintiff for services rendered and performing unnecessary services (P1. Am. Compl. at 33-35.)
Plaintiff contends that this conduct amounted to breach of contract and violations of the rules of
professional conduct.’ (See Id.)
2
Under New Jersey law, a breach of contract claim requires three elements: (1) the
existence of a valid contract; (2) a breach of that contract; arid (3) resulting damage to the
plaintiff. Ramada Worldwide, Inc. v. Kim, Civ. 09—4534, 2010 WL 2879611, at *3 (D.N.J. July
15, 2010) (citing AT& TCredit Corp. v. Zurich Data Corp., 37 F.Supp.2d 367, 370 (D.N.J.
1999)). Plaintiff has not sufficiently pleaded the claim for breach of contract. Although
Plaintiff has described Buckrier’s conduct as a breach of his contract with Plaintiff he does not
adequately plead the existence of a valid contract, breach of the terms of that contract, or
3
resulting damages.’ As such, the claims against Defendant Buckner and Sunshine, Atkin,
Minassian, Tafuri & D’Amato, P.A. are dismissed without prejudice, and Plaintiff may reassert
that claim in an amended complaint.
Plaintiff’s claims that Buckner violated the Rules of Professional Conduct do not,
standing alone, give rise to an action in tort. See Sommers v. McKinney, 287 N.J. Super. 1, 13
(App. Div. 1996); Baxi v. Liloia, 155 N.J. 190, 197-98 (1998) (explaining that “purpose of the
Model Rules [is] to regulate lawyer conduct through the disciplinary process, not to serve as a
basis for civil liability.”) (citing Legislative History of the Model Rules of Professional Conduct:
Their Development in the ABA House of Delegates 20(1987)). “[B]ecause the ethical standards

12

Plaintiff contends that Buckner overcharged him and depleted Plaintiff’s retainer for his own
financial gain and in order to further the conspiracy. This Court has already determined that
Plaintiff has not sufficiently alleged a meeting of the minds and concerted action and dismissed
his conspiracy claims without prejudice.
30

set the minimum level of competency to be displayed for all attorneys, violation of the rules
constitute evidence of malpractice.” Sommers, 287 N.J. Super. at 13 (citing Aibright v. Burns,
206 N.J. Super. 625, 634 (App. Div. 1986)).
To the extent Plaintiff intends to state a claim for legal malpractice, however, his
Amended Complaint fails to provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Legal malpractice is a variation on the tort
of negligence. McGrogan v. Till, 167 N.J. 414, 425 (2001). In order to establish a claim of legal
malpractice, a plaintiff must demonstrate: (1) the existence of an attorney-client relationship
creating a duty of care upon the attorney; (2) that the attorney breached the duty owed; (3) that
the breach was the proximate cause of any damages sustained; and (4) that actual damages were
incurred. Sommers v. McKinney, 287 N.J. Super. 1,9-10 (App. Div. 1996); see also Aibrighi v.
Burns, 206 N.J. Super. 625, 632 (App. Div. 1986).
Ordinarily, the measure of damages is what result the client would have obtained in the
absence of attorney negligence. 2175 Lemoine Ave. Corp v. Finco Inc., 272 N.J. Super. 478, 488
(1994); see also Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358, 845
A.2d 602 (2004); Froom v. Perel, 377 N.J. Super. 298, 315, 872 A.2d 1067 (App. Div.), certif
denied, 185 N.J. 267, 883 A.2d 1063 (2005). To state a claim for relief against Buckner and his
lawfirm, Plaintiff, who was acquitted of the charges at trial, must provide some facts showing
that (1) the violations of the rules of professional conduct were the proximate cause of his
damages and that (2) actual damages were incurred.’ To the extent Plaintiff wishes to allege a
4

In this regard, the Court notes that emotional distress damages are generally unavailable in a
legal malpractice action absent “egregious” and “extraordinary” circumstances. Innes v.
Marzano-Lesnevich, 435 N.J. Super. 198, 232 (App. Div. 2014) (citing Gautam v. Dc Luca, 215
N.J. Super. 388, 399 (App. Div. 1987) (“emotional distress damages should not be awarded in
legal malpractice cases at least in the absence of egregious or extraordinary circumstances....
31

state-law claim for malpractice, he may submit an amended complaint that comports with Fed.
R. Civ. P. 8(a)(2).
b. Defamation Claim against Darn E. Dewitt
On November 6, 2014, Plaintiff submitted an application to the Court to c1arif’ that he
intended to name Bergen County Sheriff Darn E. Dewitt as a defendant in his case. (No. 13.)
The claim against Defendant Dewitt sounds in defamation and occurred in 2013.
Rule 20 of the Federal Rules of Civil Procedure governs the joinder of defendants, while
Rule 18 governs the joinder of claims. See Fed. R. Civ. P. 18(a), 20(a)(2). Specifically, Rule 20
provides that “[p]ersons

...

may be joined in one action as defendants if

...

any right to relief is

arising out of the same transaction, occurrence, or series of transactions.” Fed. R. Civ. P.
20(a)(2)(A). Rule 18, in turn, provides that “[a] party asserting a claim

...

may join

...

as many

claims as it has against an opposing party,” Fed. R. Civ. P. 18(a). Where multiple defendants are
named, the analysis under Rule 20 precedes that under Rule 18. See Charles Allen Wright,
Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure Civil 3d

§ 1655; see also

United Stares v. Mississippi, 380 U.S. 128, 143,85 S.Ct. 808, 13 L.Ed.2d 717 (1965); Ross v.
Meagan, 638 F.2d 646, 650 n. 5 (3d Cir. 1981), overruled on other grounds by, Neiizke v.
Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (joinder of defendants is
not permitted by Rule 20 unless both commonality and same transaction requirements are
satisfied). Consequently, a civil plaintiff may not name more than one defendant in his original
or even amended complaint unless one claim against each additional defendant is transactionally

[D]amages should be generally limited to recompensing the injured party for his economic
loss.”)); see also Winstock v. Galasso, 430 N.J. Super. 391 (App. Div.), certif denied, 215 N.J.
487,73 A.3d 513 (2013).

32

related to the claim against the first defendant and involves a common question of law or fact.
See Fed. R. Civ. P. 20(a)(2); DeAsencio v. Tyson Foods, 342 F.3d 301, 307-08 (3d Cir. 2003) (“a
district court may exercise supplemental jurisdiction where state-law claims share ‘a common
nucleus of operative fact’ with the claims that supported the district court’s original jurisdiction”)
(citations omitted). Prisoners are not exempt from these requirements. See George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007) (“A [scatterjshot complaint that would be rejected if filed by a free
person

...

should be rejected if filed by a prisoner”).

The Court declines to exercise supplemental jurisdiction over Plaintiff’s state law
defamation claim against Darn E. Dewitt because it does not meet the commonality and same
transaction requirements. Because the Court declines to exercise supplemental jurisdiction over
Plaintiffs defamation claim, that claim is dismissed and Plaintiff’s application for clarification
(No. 13) is denied as moot. To the extent Plaintiff has omitted facts showing the relation
between this claim and his federal claims, he may submit an amended complaint.
IV.

CONCLUSION
As described in the foregoing Opinion, Plaintiff’s application to proceed informa

pauperis (No. 11) and for refund of the filing fee (No. 12) are granted and his Amended
Complaint is dismissed in part. The Complaint is dismissed with prejudice as to the State of
New Jersey, the Bergen County Prosecutor’s Office, Prosecutor John Molinelli, Assistant
Prosecutor Natalie Suarez Canella, Assistant Prosecutor Maria Rockfol, Prosecutor James
Donohue, the Westwood Police Department, the Bergen County Sheriff’s Department, The
Honorable Donald R. Venezia, J.S.C., and the Office of the Public Defender. The Court also
dismisses all time-barred claims as described herein. Plaintiff’s malicious prosecution claim
against Detective James Mc Morrow, Officer Michael Pontillo, Detective Robert Saul, Jr.,
Robert DelCorpo, Sergeant John Murphy, and Karen Eramo shall proceed past the sua sponte
33

dismissal stage. Plaintiff’s retaliation claim and Fourteenth Amendment conditions of
confinement claims against the unidentified Bergen County Sheriff’s Office arising from his
2012 trial and acquittal and as described in Section III. E(1)(g) of this opinion also proceed at
this time.
The remaining claims and Defendants are dismissed without prejudice, and Plaintiff is
granted leave to file an amended complaint to cure the deficiencies as described herein.’
5
Finally, Plaintiff’s application for clarification as to the status of Defendant Darn. W. Dewitt
(No. 13), and his application for default judgment (No. 14) are denied. An appropriate Order
follows.

Madeline Cox Arleo, District Judge
United States District Court

Datek

,

2015

‘

The Court again reminds Plaintiff that in amending his complaint he must comply with the
mandate of Rule 8, which requires a “short plain statement” of his claims, see Fed. R. Civ. P.
8(2)(b), or risk dismissal.
34