MAY v. IRVINGTON POLICE DEPARTMENT et al

Filing 25

OPINION. Signed by Judge Claire C. Cecchi on 1/19/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LOUIS MAY,

Civil Action No.: 2:15-cv-764 (CCC)
Plaintiff,

IRVINGTON POLICE DEPARTMENT,
ESSEX COUNTY DEPARTMENT OF
CORRECTIONS, ESSEX COUNTY
PROSECUTOR’S OFFICE, OFFICE OF
THE PUBLIC DEFENDER, DEIDRE
MCMAHON, NEW JERSEY
ATTORNEY GENERAL, STATE OF
NEW JERSEY DEPARTMENT OF
TREASURY JOHN DOES (1-10), and
ABC PUBLIC ENTITIES (1-10),

OPINION

Defendants.

CECCHI, District Judge.
I.

INTRODUCTION

This matter comes before the Court upon the motion (ECF No. 13) of Defendants Essex
County Prosecutor’s Office, Office of the Public Defender, Deirdre McMahon,’ New Jersey
Attorney General, and State of New Jersey Department of Treasury (collectively, the “State
Defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint of
Plaintiff Louis May. The Court decides this motion without oral argument pursuant to Rule 78 of
the Federal Rules of Civil Procedure.2 For the reasons set forth below, the State Defendants’

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

1

motion is granted in part and denied in part.
II.

BACKGROUND3

This action arises out of Plaintiffs arrest in June 2013 and subsequent detention in Essex
County Jail until late January 2014. See Compl., ECF No. 1-1, at ¶J 13, 24.
On June 11, 2013, a criminal complaint was filed against Plaintiff.

at ¶ 11. Later that

week, Defendant Irvington Police Department arrested Plaintiff, and Plaintiff was soon transferred
to the Essex County Jail. RI. at

¶

12-14. Defendant Deirdre McMahon from the Office of the

Public Defender was appointed as counsel for Plaintiff. Id. at ¶ 14. During the course of Plaintiffs
detention, Plaintiff sent McMahon three letters requesting to see her. Id. at ¶ 15. McMahon never
met with Plaintiff. Id. McMahon also did not request a probable cause hearing on behalf of her
client. Id. at

¶

16.

On January 21, 2014, an Essex County grand jury no billed the criminal

complaint against Plaintiff. Id. at ¶ 20. Plaintiff was released ten days later.

at ¶ 21.

In January 2015, Plaintiff filed suit in the Superior Court of New Jersey, Essex County.
$.çç Compi. The State Defendants removed this action to federal court in february 2015. See
Notice of Removal, ECF No. 1. The State Defendants now seek dismissal of Plaintiffs Complaint
as against them. See Motion to Dismiss, ECf No. 13.
III.

LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 1 2(b)(6),
it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all

The Court must assume as true all factual allegations of the complaint when considering a
motion to dismiss. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
2

well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor
of the non-moving party. $ç Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 200$).
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.” Igbal, 556 U.S. at 678.
However, “the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” M. Thus, when reviewing complaints
for failure to state a claim, district courts should engage in a two-part analysis: “First, the factual
and legal elements of a claim should be separated

.

.

.

Second, a District Court must then

determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
IV.

DISCUSSION

For the reasons below, the State Defendants’ motion will be granted in part and denied in
part.
A.

Plaintiffs Complaint Against The Attorney General’s Office And The State
Treasury Is Dismissed On The Basis Of Eleventh Amendment Immunity For
Departments Of The State

The State Defendants seek to dismiss Plaintiff’s

§ 1983 and 1985 claims on the basis of

Eleventh Amendment Immunity. The Eleventh Amendment protects states, state agencies, and
state departments from suit in federal court.

Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100 (1984); see also Malcomb v. Beaver Cnty. Penn. (Prothonotary), 616 Fed. App’x 44,

3

45 (3d Cir. 2015) (finding the Attorney General’s Office immune from

§ 1983 claims under the

Eleventh Amendment). Absent a waiver of immunity by the state, the Eleventh Amendment
precludes federal suits for money damages against states and state officers sued in their official
capacities. See Kentucky v. Grahrn, 473 U.S. 159, 169 (1985). New Jersey has not expressly
waived its immunity, and nothing in
Amendment immunity.

§ 1983 and 1985 abrogates New Jersey’s Eleventh

$ Quem v. Jordan, 440 U.S. 332 (1979); Garcia v. Richard Stockton

Coll. of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002). Because the Attorney General’s
Office and New Jersey State Treasury are state departments, entitled to Eleventh Amendment
Immunity, Plaintiffs Complaint against them will be dismissed.
B.

Plaintiffs Complaint Against The Essex County Prosecutor’s Office And
Office Of The Public Defender Is Dismissed On The Basis Of Eleventh
Amendment Immunity For Entities That Are Arms Of The State

In his opposition papers, Plaintiff does not argue that the State Defendants do not have
sovereign immunity pursuant to the Eleventh Amendment. Rather, Plaintiff appears to argue that
the State Defendants may be liable if they had an official policy or custom that led to the violation
of Plaintiffs constitutional rights. Plaintiffs Br. at 8-9.

The seminal case on this question is

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). There, the Supreme
Court concluded that “a local government may not be sued under

§ 1983 for an injury inflicted

solely by its employees or agents. 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. Unlike municipalities, states are protected by the Eleventh Amendment. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989)
(holding that Monell is not applicable to “States or governmental entities that are considered ‘arms

4

of the state’ for Eleventh Amendment purposes.”). Thus, the Monell Doctrine does not apply to
states or entities that are “arms of the state.” See id.
In determining whether an entity is an arm of the state, the Third Circuit looks at three
factors: 1) Whether the money that would pay the judgment would come from the state; 2) The
status of the agency under state law; and 3) What degree of autonomy the agency has. Fitchik v.
New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (condensing nine
factors from Urbano v. Bd. of Managers of New Jersey State Prison, 415 F.2d 247 (3d Cir. 1969)
into three factors). There is no real dispute that the New Jersey Attorney General and New Jersey
Department of Treasury are entitled to immunity due to their status as state departments, as
discussed above. As to Defendants Essex County Prosecutor’s Office and the Office of the Public
Defender, the three inquiries from Fitchik weigh in favor of finding that these entities are arms of
the State of New Jersey.
First, if there were a judgment against the Essex County Prosecutor’s Office and the Office
of the Public Defender, the New Jersey State Treasury would be the source of funds for payment
of that judgment. See State Defendants’ Br. at 8; see, e.g., Kandil v. Yurkovic, No. CIV. A. 064701 JAG, 2007 WL 4547365, at *3 (D.N.J. Dec. 18, 2007). Second, both offices were created
by the State of New Jersey. The Essex County Prosecutor’s Office is created by the New Jersey
Constitution, and the Office of the Public Defender is established by the Executive Branch of the
State of New Jersey, with the Governor appointing the Public Defender with the Senate’s advice
and consent. See State Defendants’ Br. at 8, 10. Last, the New Jersey Attorney General supervises
and supersedes the Essex County Prosecutor’s Office, while the Public Defender’s Office must
report annually to the New Jersey State Legislature on its operations. See State Defendants’ Br.
at 9-10. Accordingly, the Essex County Prosecutor’s Office and the Office of the Public Defender

5

are arms of the state for Eleventh Amendment purposes. çç Beightier v. Office of Essex Cnty.
Prosecutor, 342 fed. App’x 829, 832 (3d Cir. 2009) (finding Eleventh Amendment immunity
applies to county prosecutor’s office and noting that when New Jersey county prosecutors engage
in classic law enforcement and investigative functions, they also act as officers of the state);
Harrison v. Ati. (Region) Office of the Pub. Defender, No. CIV.A. 10-2294 RBK, 2010 WL
3946716, at *3 (D.N.J. Oct. 4, 2010) (finding the Office of the Public Defender is an arm of the
state entitled to Eleventh Amendment immunity). Because these offices are arms of the state, they
may not be sued under a Monell theory of liability in federal court. Accordingly, Plaintiffs
Complaint against the Essex County Prosecutor’s Office and the Office of the Public Defender
will be dismissed.
C.

Plaintiffs § 1983 And 1985 Claims Against The Individual Public Defender
Are Dismissed As McMahon Was Not A State Actor

The State Defendants also move for dismissal of the

§ 1983 and 1985 claims against the

individual public defender, Deirdre McMahon. Plaintiff argues that these claims should not be
dismissed because “[a] public defender does not have absolute immunity for conspiracy,
intentional misconduct or a claim of legal [m]alpractice.” See Plaintiffs Br. at 3.
To survive dismissal of a

§ 1983 claim, a plaintiff must allege “two essential elements: (1)

that the conduct complained of was committed by a person acting under color of state law; and (2)
that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Schneyder v. Smith, 653 f.3d 313, 319 (3d Cir. 2011).
Public defenders “do not act ‘under color of state law’ and are not liable under section 1983 when
performing traditional functions as defense counsel.” Nelson v. Dauphin Cnty. Pub. Defender,
381 fed. App’x 127, 128 (3d Cir. 2010). See also Polk Cnty. v. Dodson, 454 U.S. 312, 325, 102
S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981) (finding that a public defender “does not act under color
6

of state law when performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding.”); Beaver v. Union Cnty. Pa., No. 14-4749, 2015 WL 4530428, at *2 (3d Cir.
July 28, 2015) (finding plaintiff did not state a claim against two public defenders because they
were not acting under color of state law); Repoli v. Cuoco, 316 Fed. App’x 188, 190 (3d Cir. 2009)
(explaining that to satisf’ “color of law” element, plaintiff must allege that public defender was
“attempting to exercise some sort of official authority over him” and “not merely performing
lawyers’ traditional functions{.]”). Plaintiff’s Complaint does not allege that McMahon was
attempting to exercise any official authority over him. Rather, Plaintiff alleges that McMahon
failed to meet with him or conduct a probable cause hearing. Because McMahon was not acting
under color of state law while representing Plaintiff as counsel to an indigent criminal defendant,
Plaintiff’s

§ 1983 claim against MeMahon will be dismissed for failure to state a claim.

Plaintiff also alleges that McMahon conspired against him, resulting in the deprivation of
his liberty. To survive dismissal of a

§ 1985 claim, a plaintiff must allege: (1) a conspiracy; (2)

motivated by racial or class based discriminatory animus designed to deprive, directly or indirectly,
any person or class of person to the equal protection of the laws, (3) an act in furtherance of the

conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a
citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 2011) (citing United Bhd.
of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 828—29 (1983)).
Plaintiff’s Complaint does not plead the first three elements of a

§ 1985 claim. First, apart from

perfunctorily alleging that “Plaintiff was subject to a conspiracy” (Compl. at 4), Plaintiff does not
describe the nature of the conspiracy or with whom McMahon conspired. Second, Plaintiff does
not allege that the conspiracy was motivated by racial or class based discrimination. Third,
Plaintiff does not allege what acts McMahon took in furtherance of the conspiracy. In Plaintiff’s

7

brief in opposition to the State Defendants’ motion to dismiss, he concedes that “[i]t is also
unknown if the Public Defend[er] participated in the conspiracy to deny Plaintiff his civil rights.”
See Plaintiff’s Br. at 2. Accordingly, Plaintiffs § 1985 claim against Deirdre McMahon will be
dismissed for failure to state a claim.
D.

Plaintiffs Legal Malpractice Claim Against The Individual Public Defender
Will Not Be Dismissed

Last, with regard to Plaintiff’s claim against McMahon for legal malpractice, this Court
finds that McMahon is not immune from a legal malpractice suit and Plaintiff has sufficiently
pled—at this stage of the proceedings—the requisite elements of that claim.
First, contrary to the State Defendants’ argument, McMahon is not entitled to immunity
for Plaintiffs claim of legal malpractice. The State Defendants posit that McMahon is immune
pursuant to the New Jersey Tort Claims Act Section 59:3-3, which states that “A public employee
is not liable if [s]he acts in good faith in the execution or enforcement of any law. Nothing in this
section exonerates a public employee from liability for false arrest or false imprisonment.” N.J.
Stat. Ann. 59:303; see Defendants’ Br. at 31. It does not appear that this section applies to
McMahon who, acting as counsel to Plaintiff, was not executing or enforcing any law. Rather,
“[a] public defender is not immune from liability for professional malpractice

.

.

.

Once the

appointment of a public defender in a given case is made, [her] public or state function ceases, and
thereafter, [s]he functions purely as a private attorney concerned with servicing [her] client; thus,
[s]he ought to be subject to liability for tortious conduct.” Deibridge v. Office of Pub. Def., 238
N.J. Super. 288, 311-12, 569 A.2d 854, 865-66 (Ch. Div. 1989) affd sub nom. A.D. v. Franco, 297
N.J. Super. 1, 687 A.2d 748 (App. Div. 1993); see generally Fern v. Ackerman, 444 U.S. 193
(1979) (holding that immunity doctrine inapplicable to court-appointed defense counsel in legal
malpractice suit because “primary office performed by appointed counsel parallels the office of
$

privately retained counsel .“). Accordingly, Plaintiffs legal malpractice claim against McMahon
is not barred by the immunity doctrine.
Next, turning to whether Plaintiffhas stated a claim of legal malpractice against McMahon,
“[t]he necessary elements of a claim for legal malpractice are: (1) the existence of an attorneyclient relationship creating a duty of care upon the attorney; (2) the breach of such duty; and (3)
proximate causation.

Albright v.

Burns,

206 N.J.Super.

625,

632,

503

A.2d 386

(N.J.Super.App.Div.1986).” Jonas v. Gold, No. CIV.A. 13-2949, 2014 WL 4854484, at *9 (D.N.J.
Sept. 30, 2014) affd, No. 14-4255, 2015 WL 5573963 (3d Cir. Sept. 23, 2015). The State
Defendants argue that “Plaintiff fails to plead facts sufficient to show that Defendant ADPD
McMahon breached her duty of care to him.” See Defendants’ Br. at 31. However, Plaintiffs
Complaint alleges that “McMahon of the Office of the Public Defender was appointed as counsel
for Plaintiff’ (cc Compl.

¶ 14) and that:

Defendants Public Defender and Deirdre McMahon breached their standard
62.
of care by failing to properly represent Plaintiff and allowing him to remain in
prison without a probable cause hearing and without an opportunity to be released
with or without bond.
Defendants Public Defender and Deirdre McMahon breached their standard
63.
of care by failing to communicate with the Plaintiff and failing to respond to the
Plaintiffs letters.
Defendants Public Defender and Deirdre McMahon caused Plaintiff to
64.
suffer damages as a result of their breach of the standard of care.
These facts, if accepted as true, would state a claim to relief that is plausible on its face.
See Ashcrofi v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, the State Defendants’ request to
dismiss the legal malpractice claim against McMahon will be denied.
V.

CONCLUSION
for the foregoing reasons, the State Defendants’ motion to dismiss Plaintiffs Complaint

9

is granted in part and denied in part. An appropriate order accompanies this Opinion.
Dated: January 19, 2016.

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

10