BALLISTER v. UNION COUNTY PROSECUTOR'S HOMOCIDE TASK FORCE et al

Filing 20

OPINION. Signed by Judge Esther Salas on 3/2/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

________________________
MATTHEW J. BALLISTER, III,

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Plaintiff,
v.
UNION CTY. PROSECUTOR'S
HOMOCIDE TASK FORCE, et al.,
Defendants.

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Civil Action No. 15-7655 (ES)

OPINION

________________________:
SALAS, DISTRICT JUDGE
Plaintiff Matthew J. Ballister (“Plaintiff”), a pre-trial detainee confined at Union County
Jail in Elizabeth, New Jersey at the time of filing, seeks to bring this action in forma pauperis.
Based on his affidavit of indigence, the Court previously granted Plaintiff’s application to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk of the Court to file the
Complaint. (D.E. No. 2).
At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A, 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. 1 For the reasons set forth below, the Court concludes
that the Complaint should be dismissed.

1

After he filed the Complaint in this matter, Plaintiff filed several lengthy letters and supplements.
(See D.E. Nos. 3-8). Based on these subsequent filings, the Court entered an order advising
Plaintiff that if he has additional facts or claims he wishes to raise, he must file an amended

I. BACKGROUND
In his 135-page Complaint, Plaintiff names the Union County Prosecutor’s Homicide Task
Force; Detective Sergeant Jorge Jimenez; Detective Robert Henderson; Detective William
Fuentes; Detective Sofia Santos; Union County Prosecutor Scott Peterson; Township of Union
Municipal Court Prosecutor Michael Henn; Township of Union Police Department; Police Officer
Salvatore Valentino; Union Police Department S.W.A.T. team; Police Officer Christopher
Donnelly; Police Officer Thomas Ronan; Police Officer Christopher Baird; Police Officer Daniel
Mitchell; Police Officer Thomas Florio; Police Officer Peter Simon; Police Officer Daniel
Teleposky; Police Officer Tim Ford; Union Police Detective Anthony Sickinger; and Union Police
Detective Lieutenant Perez, as Defendants.
To the best the Court can determine, Plaintiff makes the following allegations against these
Defendants.

Against Defendant Union County Prosecutor’s Homicide Task Force, Plaintiff

alleges that it employs the individuals who investigated the death of Plaintiff’s girlfriend, April
Wychoff, and was responsible for the actions of those individuals during the arrest and
interrogation of Plaintiff. (D.E. No. 1, Complaint (“Compl.”) 8-9). Plaintiff also makes similar
allegations against the Union County Police Department and Emergency Response Team. (Id. at
59-62, 71-76). Against Defendants Jimenez and Henderson, Plaintiff alleges that they conspired
to “bully, intimidate and coerce” friends and neighbors of Plaintiff and Ms. Wychoff. (Id. at 11).
Specifically, they tried to convince Ms. Marlo Conklin to say that Plaintiff had murdered Ms.
Wychoff. (Id.). Plaintiff further alleges that Defendant Jimenez illegally searched Plaintiff’s

complaint which contains all issues. (D.E. No. 9). The Court further advised that if he elected
not to file an amended complaint, the Court would consider only the facts and claims contained in
the original Complaint. (Id.). Because Plaintiff did not file an amended complaint, the Court
will screen only Plaintiff’s original Complaint. (D.E. No. 1).
2

home without a warrant on October 23, 2013. (Id. at 12). Plaintiff alleges that Defendant
Jimenez conspired with the Union County Prosecutor’s Homicide Task Force, Sofia Santos,
Detective Fuentes, Detective Henderson and the Union County Prosecutor’s Office to “slander,
defame and destroy the character of [Plaintiff], to unlawfully and excessively charge him and
slander and defame his character to the media.” (Id. at 13-14). Plaintiff alleges that Defendant
Jimenez conspired with the Union County Prosecutor’s Office and the Homicide Task Force to
“overcharge [him], falsely arrest [him], and charge [him] with multiples of the same crime.” (Id.).
Plaintiff alleges that Defendant Jimenez conspired with Assistant Prosecutor Scott Peterson and
Homicide Task Force Detective Sofia Santos and Detective William Fuentes to deny Plaintiff
assistance of his counsel during “questioning.” 2 (Id. at 16). Plaintiff states that he repeatedly
requested counsel during questioning but was denied access. (Id.).
Plaintiff alleges that Defendant Henderson conspired with Prosecutor Scott Peterson to lie
to the grand jury in order to indict Plaintiff on murder charges. (Id. at 19). Plaintiff also alleges
that Defendant Henderson conspired with Assistant Prosecutor Michael Henn of the Union County
Municipal Court to falsely charge Plaintiff with nine additional charges stemming from the night
of Ms. Wychoff’s death. (Id. at 21). Plaintiff alleges that Defendants Henderson, Fuentes and
Santos also conspired with the Union County Prosecutor’s Office and the Homicide Task Force to
“slander and defame and destroy” the character and reputation of Plaintiff. (Id. at 25, 33, 41).
Plaintiff alleges that Defendant Fuentes improperly arrested Plaintiff on October 23, 2013
outside of his home without a warrant. (Id. at 32). Plaintiff also alleges that Defendant Santos

2

Plaintiff uses the term “questioning”, however, later in the Complaint, he states that the officers
were informed by the prosecutor that they could not ask Plaintiff any further questions unless he
initiated the discussion. (Compl. at 45).
3

improperly charged him with first degree murder when there was “no weapon, no motive, no body,
and no witnesses.” (Id. at 39).
Plaintiff alleges that Prosecutor Paterson lied to the grand jury to procure an indictment
against him on March 26, 2014.

(Id.).

Plaintiff alleges that Assistant Prosecutor Henn

“approve[d] and collaborate[d]” with Detective Henderson to “wrongfully and falsely charge
[Plaintiff] with many false charges that make no sense.” (Id. at 52). Plaintiff alleges that
Defendant Henn did this because of a personal vendetta against Plaintiff which arose because he
previously prosecuted a domestic violence case against Plaintiff which was dismissed. (Id.).
Plaintiff alleges that Union County Police Officer Valentino took the statements of
Plaintiff’s neighbors when they came to the police station to report that they had seen Ms.
Wychoff’s lifeless body the night before, but it was no longer there the following morning. (Id.
at 63-69). Plaintiff alleges that the officer violated his rights by not investigating their statements
and simply writing up the report. (Id.).
Plaintiff alleges that Defendant Police Officers Donnelly, Ronan, Baird, Mitchell, Florio,
Simon, Teleposky and Ford illegally searched his home without a warrant on October 23, 2013.
(Id. at 80).

Plaintiff also alleges that these individuals falsely arrested him without a warrant on

that same date. (Id. at 81). Plaintiff further alleges that these individuals conspired with the
Homicide Task Force and Police Department to undertake these actions. (Id.).
Plaintiff alleges that Defendants Detective Lieutenant Perez and Detective Sichinger
authorized the use of “excessive and deadly force” by the Union County Police Department when
they came to arrest him. (Id. at 84). Specifically, a full “SWAT” team entered his house in
tactical gear and arrested him without a warrant. (Id. at 84).
Plaintiff is seeking monetary and injunctive relief. (Id. at 135).
4

II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua
sponte dismiss any claim that is frivolous, is 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. This
action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A because Plaintiff is a prisoner who is proceeding as an indigent.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive sua sponte screening for failure to state a claim 3, the complaint must allege “sufficient
factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff

“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 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir.
2012) (discussing 42 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
3

5

pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d
Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
added).
2. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his
constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States and, second, that the alleged deprivation
was committed or caused by a person acting under color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B. Analysis
At the outset, the Court notes that Plaintiff has alleged conspiracies to violate his
constitutional rights amongst almost every combination of defendants. (See, e.g., Compl. 11, 1314, 16, 19, 21). To demonstrate the existence of 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.” Laurensau v. Romarowics, 528 F. App’x 136 (3d Cir. 2013) (internal
6

citations omitted). To plead a conspiracy claim properly, a plaintiff must allege “facts that
plausibly suggest a meeting of the minds.” Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 179 (3d Cir. 2010). The complaint must not plead merely a “conclusory
allegation of agreement at some unidentified point.” Twombly, 550 U.S. at 557.
Plaintiff has alleged no facts to support a conspiracy claim. He simply states that different
combinations of defendants conspired to deprive him of various constitutional rights. Such sparse
and conclusory allegations are insufficient to state a claim under Iqbal. See 556 U.S. at 678.
Therefore, all conspiracy claims against all Defendants are dismissed without prejudice for failure
to state a claim at this time.
The Court also notes that Plaintiff includes a claim for a violation of his Fifth and
Fourteenth Amendment due process rights against each defendant, along with the respective morespecific constitutional violation. However, the due process clause under the Fifth Amendment
“only protects against federal governmental action and does not limit the actions of state officials.”
See Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir. 2011) (citing Riley v. Camp, 130 F.3d 958,
972 n. 19 (11th Cir. 1997)); Nguyen v. U.S. Cath. Conf., 719 F.2d 52, 54 (1983) (“the limitations
of the fifth amendment restrict only federal government action”); Bergdoll v. City of York, 515 F.
App'x 165, 170 (3d Cir. 2013) (same); Thomas v. E. Orange Bd. of Educ., 998 F.Supp.2d 338, 351
(D.N.J. 2014) (“the Fifth Amendment restricts the actions of federal officials, not state actors ....
[a p]laintiff cannot ground her Section 1983 claim in the Fifth Amendment”). With regard to the
Fourteenth Amendment, though it is not clear, it appears that the facts supporting said claims are
the same as those supporting his more-specific constitutional claims, i.e. Fourth Amendment, Sixth
Amendment, etc.

As such, these Fourteenth Amendment claims will be dismissed without

prejudice. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (“[u]nder
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[the “more-specific-provision” rule], if a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process.”) (internal
citations omitted).
1. Union County Prosecutor’s Office Homicide Task Force, Union Township Police
Department
It is well established that a prosecutor’s office is not a “person” amenable to suit under §
1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 70–71 (1989) (holding that
state is not a “person” within the meaning of Section 1983); Gordon v. Berkeley Twp. Police, Civ.
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, Civ. No. 10–3438, 2010 WL 4117140, at *1 n. 1 (D.N.J. Oct.19, 2010) (same) (citations
omitted); Martin v. Red Lion Police Dep't, 146 F. App’x, 558, 562 n. 3 (3d Cir. 2005). As such,
to the extent that the Complaint can be read to include claims against the Prosecutor’s Office, those
claims are dismissed with prejudice.

Similarly, the claims against Union Township Police

Department, including the Department’s S.W.A.T. team, must also be dismissed with prejudice.
See Mikhaeil v. Santos, 646 F. App'x 158, 163 (3d Cir. 2016) (citing Bonenberger v. Plymouth
Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997)) (“although local governmental units may constitute
‘persons’ against whom suit may be lodged under § 1983, a city police department is a
governmental sub-unit that is not distinct from the municipality of which it is a part”).
To the extent the Task Force is not considered part of the Prosecutor’s Office, and
construing the claims against the police department as claims against the township, the claims
against these entities will still be dismissed. “[A] local government may not be sued under § 1983
8

for an injury inflicted solely by its employees or agents.” Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990). “When a suit against a municipality is based on § 1983, the
municipality can only be liable when the alleged constitutional transgression implements or
executes a policy, regulation, or decision officially adopted by the governing body or informally
adopted by custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell,
436 U.S. 658); see also McTernan v. City of York, PA, 564 F.3d 636, 657 (3d Cir. 2009). Thus,
for government entity liability to attach under Monell, any injury must be inflicted by “execution
of a government's policy or custom.” Santiago v. Warminster Twp., 629 F.3d 121, 135 (3d Cir.
2010) (citing Monell, 436 U.S. at 694). To satisfy the pleading standard for a Monell claim, a
claimant “must identify a custom or policy, and specify what exactly that custom or policy was.”
McTernan, 564 F.3d at 658 (citations omitted). Here, Plaintiff has not alleged facts about a policy
or custom with any specificity and, therefore, any intended claims against the Task Force and
Union Township are dismissed without prejudice.
2. Witness Tampering
Plaintiff alleges that Defendant Jimenez and Defendant Henderson “intimidate[d] and
influence[d]” the testimony of Marlo Conkin, one of Plaintiff’s neighbors. Plaintiff alleges that
this violates his Sixth Amendment right to have “compulsory process for obtaining witnesses in
the defendant’s favor.” (Compl. at 98).
To prevail on a § 1983 claim predicated on the right to a fair trial, the plaintiff must show
that the government’s alleged pretrial misconduct resulted in an unfair trial. See Anderson v.
Venango Cty., Pa., 458 F. App’x 161, 165 (3d Cir. 2012) (citing Morgan v. Gertz, 166 F.3d 1307,
1310 (10th Cir.1999) (“[T]he withholding or destruction of evidence violates a criminal
defendant's constitutional rights only if . . . the criminal defendant is denied a fair trial.”); Hensley
9

v. Carey, 818 F.2d 646, 649 (7th Cir. 1987) (the defendant “could not possibly have been deprived
of his right to a fair trial since he was never tried”); see also Rogala v. Dist. of Columbia, 161 F.3d
44, 55–56 (D.C.Cir. 1998) (stating that no violation of the Sixth Amendment right to compulsory
process occurs when the defendant is not tried)).

The government’s violation of “a prophylactic

rule” designed to protect the right to fair trial, without a violation of the right to a fair trial itself,
does not support a claim under § 1983. Hensley, 818 F.2d at 649.
Here, Plaintiff has not yet been tried. As a result, he has not yet been denied his right to a
fair trial and it is mere speculation on his part as to what testimony Ms. Conklin will give and
whether that testimony will be in his favor. This claim will therefore be dismissed without
prejudice.
3. Illegal Search/Seizure and False Arrest
The Fourth Amendment prohibits “unreasonable searches and seizures . . . .” U.S. Const.
amend. IV. “Generally, for a seizure to be reasonable under the Fourth Amendment, it must be
effectuated with a warrant based on probable cause.” United States v. Robertson, 305 F.3d 164,
167 (3d Cir. 2002). A seizure occurs when there is either (a) “a laying on of hands or application
of physical force to restrain movement, even when it is ultimately unsuccessful,” or (b) submission
to “a show of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991). If a suspect in the
absence of physical force does not submit to an officer's show of authority, there is no seizure and
no Fourth Amendment claim. Id. at 626–27. “[T]he test for existence of a ‘show of authority’
is an objective one: not whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer's words and actions would have conveyed that to a reasonable
person.” Id. at 628.

10

A search of a home without a warrant is presumptively unreasonable under the Fourth
Amendment. Payton v. New York, 445 U.S. 573, 586 (1980). There are several established
exceptions to the warrant requirement, however, including exigent circumstances and consent.
Steagald v. United States, 451 U.S. 204, 211 (1981). Exigent circumstances exist where “officers
reasonably . . . believe that someone is in imminent danger.” Parkhurst v. Trapp, 77 F.3d 707,
711 (3d Cir. 1996) (emphasis omitted). For example, a search may be justified based on exigent
circumstances by “hot pursuit of a fleeing felon,” “imminent destruction of evidence,” or “the need
to prevent a suspect's escape.” Minnesota v. Olson, 495 U.S. 91, 100 (1990). Regardless of
whether an exception applies, a warrantless search generally must be supported by probable cause.
New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
It is well established in the Third Circuit that an arrest without probable cause is a Fourth
Amendment violation actionable under § 1983. See Berg v. Cnty of Allegheny, 219 F.3d 261,
268–69 (3d Cir. 2000) (collecting cases); see also Albright v. Oliver, 510 U.S. 266, 274 (1994) (a
section 1983 claim for false arrest may be based upon an individual's Fourth Amendment right to
be free from unreasonable seizures). To state a Fourth Amendment claim for false arrest, a
plaintiff must allege two elements: “(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) (citing
Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) and Dowling v. City of Phila., 855
F.2d 136, 141 (3d Cir. 1988)).

Probable cause exists “whenever reasonably trustworthy

information or circumstances within a police officer's knowledge are sufficient to warrant a person
of reasonable caution to conclude that an offense has been committed by the person being arrested.
United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. State of Ohio, 379 U.S.
89, 91 (1964)).
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Based on the allegations in the Complaint, it appears that Plaintiff is arguing that he was
involuntarily taken from his house by Defendants Jimenez, Henderson, Fuentes, Santos, Police
Officer Christopher Donnelly; Police Officer Thomas Ronan; Police Officer Christopher Baird;
Police Officer Daniel Mitchell; Police Officer Thomas Florio; Police Officer Peter Simon; Police
Officer Daniel Teleposky; Police Officer Tim Ford; Union Police Detective Anthony Sickinger;
and Union Police Detective Lieutenant Perez, on October 23, 2013, without a warrant. He was
then brought to the police station for questioning, where he remained for 12 hours. (Compl. at
98). However, the Complaint also alleges that he was arrested on October 23, 2013. (Id. at 99).
It is unclear to the Court precisely when Plaintiff was arrested and whether he was arrested when
he was removed from his house.
More importantly, the Complaint also states that neighbors of Plaintiff went to police
headquarters on October 23, 2013 to report that the night before, they had seen the “lifeless” body
of Ms. Wychoff, with blood covering her face, in the driveway of Plaintiff and Ms. Wychoff’s
home. (Compl. at 64). They further reported that, in the morning, the body was gone and the
blood had been washed away. (Id.). It is not entirely clear from the Complaint whether the report
by the neighbors at police headquarters occurred before or after Plaintiff was “seized” and the
search of the home ensued. To the extent that the search and seizure occurred after the report
from the neighbors, it would appear that exception to the warrant requirement applied because they
had information that Ms. Wychoff was injured and perhaps in danger. See Ray v. Twp. of Warren,
626 F.3d 170, 177 (3d Cir. 2010) (citing United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)
(“Examples of exigent circumstances include, but are not limited to, hot pursuit of a suspected
felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers
or others”). It would also appear that the officers had probable cause because: Plaintiff was at the
12

house alone; the body of Ms. Wychoff had been seen bloody and lifeless in the driveway the prior
evening; and the body and blood stains were gone the next morning. Nevertheless, given the lack
of clarity as to the timeline of the events, the Court will dismiss these claims without prejudice. 4
4. Denial of Right to Counsel
Plaintiff alleges that during the “interrogation” at the police station, Defendants Jimenez,
Fuentes, Santos and Peterson “refused to notify” Plaintiff’s attorney from a previous matter that
Plaintiff had asked for his assistance. (Compl. at 100). Plaintiff states that had Defendants
contacted his attorney as requested, a statement “would have been made.” (Id. at 33). Because
his attorney was not called, Plaintiff alleges that he missed his opportunity to make a statement
and “the entire situation was made worse.” (Id.).
Plaintiff alleges that this failure violated his Sixth Amendment right to counsel. The
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
4

Likewise, based on the unclear timeline regarding the report about Ms. Wychoff’s body,
the Court will also dismiss Plaintiff’s claims that the Defendants used excessive force when they
blocked off his street and used a S.W.A.T. team in full combat gear with assault rifles. See Estate
of Smith v. Marasco, 318 F.3d 497, 515-16 (3d Cir. 2003) (“To state a claim for excessive force
as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a seizure
occurred and that it was unreasonable…The test of reasonableness under the Fourth Amendment
is whether, under the totality of the circumstances, the officers' actions are objectively reasonable
in light of the facts and circumstances confronting them, without regard to their underlying intent
or motivations…Factors to consider in making a determination of reasonableness include the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he actively is resisting arrest or attempting to evade arrest by flight,
as well as the possibility that the persons subject to the police action are themselves violent or
dangerous, the duration of the action, whether the action takes place in the context of effecting an
arrest, the possibility that the suspect may be armed, and the number of persons with whom the
police officers must contend at one time”) (internal citations and quotations omitted).
The question of whether the police were aware of the fact that Ms. Wychoff’s body had
been seen bloody and lifeless in the driveway the night before but had since been removed would
certainly be relevant to this analysis.
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have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Sixth Amendment
right to counsel “exists to protect the accused during trial-type confrontations with the prosecutor.”
United States v. Gouveia, 467 U.S. 180, 190 (1984). The Supreme Court “ha[s] long recognized
that the right to counsel attaches only at or after the initiation of adversary judicial proceedings
against the defendant,” id. at 187, “whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment,” Kirby v. Illinois, 406 U.S. 682, 688–89 (1972) (plurality
opinion). The Supreme Court “ha[s] never held that the right to counsel attaches at the time of
arrest.” Gouveia, 467 U.S. at 190. “[B]efore proceedings are initiated a suspect in a criminal
investigation has no constitutional right to the assistance of counsel.” Davis v. United States, 512
U.S. 452, 457 (1994); James v. York Cty. Police Dep't, 160 F. App'x 126, 132 (3d Cir. 2005).
Here, as stated above, the exact timeline of Plaintiff’s criminal proceedings is unclear. Though it
does not seem that “adversary judicial proceedings” had been initiated at that juncture, thereby
rendering the Sixth Amendment inapplicable, the Court cannot definitely determine that is correct.
As such, this claim will be dismissed without prejudice under Iqbal.
To the extent Plaintiff is alleging that this refusal somehow violated his Fifth Amendment
right against compelled self-incrimination, the Court notes that the failure of a government agent
to provide a lawyer during interrogation once one is requested, does not, in and of itself, give rise
to a claim under 42 U.S.C. § 1983. See Ojo v. Luong, No. 14-4347, 2015 WL 1808514, at *5
(D.N.J. Apr. 21, 2015) (citing Chavez v. Martinez, 538 U.S. 760, 773 (2003); see Giuffre v. Bissell,
31 F.3d 1241, 1256 (3d Cir. 1994) (“violations of the prophylactic Miranda procedures do not
amount to violations of the constitution itself . . . the ‘right to counsel’ during custodial
interrogation recognized in Miranda . . . is merely a procedural safeguard, and not a substantive
right”); see also Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003) (upholding Giuffre). A Miranda
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claim only becomes actionable under § 1983 when a statement elicited in the absence of those
warnings is used at Plaintiff’s criminal trial. Chavez, 538 U.S. at 773; see also Large v. Cty. Of
Montgomery, 307 F. App'x 606, 607 (3d Cir. 2009). Here, it does not appear that Plaintiff even
made a statement, and certainly no statement has yet been introduced at trial. (Compl. at 33).
Therefore, this claim will be dismissed without prejudice. Large, 307 F. App'x at 607; Renda 347
F.3d at 559; Ojo, 2015 WL 1808514, at *5.
5. Grand Jury Testimony
Plaintiff alleges that Defendant Henderson gave untruthful testimony to the grand jury on
March 26, 2014. (Compl. at 103). However, the Supreme Court has unanimously held that
grand jury witnesses, like trial witnesses, have “absolute immunity from any § 1983 claim based
on the witness testimony.” Rehberg v. Paulk, 132 S.Ct. 1497, 1506 (2012); see also Peteete v.
Asbury Park Police Dep't, 477 F. App'x 887, 889–90 (3d Cir. 2012). The Supreme Court noted
that “[d]espite the broad terms of § 1983, this Court has long recognized that the statute was not
meant to effect a radical departure from ordinary tort law and the common-law immunities
applicable in tort suits.” Rehberg, 132 S.Ct. at 1502. “Immunities well grounded in history and
reason, were not somehow eliminated by covert inclusion in the general language of § 1983.” Id.
(internal citations and quotations omitted). Defendant Henderson is therefore entitled to absolute
immunity for his testimony before the grand jury, and this claim must be dismissed with prejudice.
6. Prosecutorial Misconduct
Plaintiff alleges that Defendant Peterson “perjured himself” and lied to the grand jury on
March 26, 2014.

(Compl. at 116).

Specifically, Plaintiff argues that Defendant Peterson

inaccurately described various pieces of evidence to the grand jury which were unfavorable to
Plaintiff. (Id.).
15

Defendant Peterson has absolute prosecutorial immunity for these actions because the
alleged constitutional violations involve the prosecutor’s presentation of evidence to the grand jury
and failure to present exonerating evidence to the grand jury, conduct which is immune from suit
for damages. See Imbler v. Pachtman, 424 U.S. 409, 430 (1970) (“in initiating a prosecution and
in presenting the State's case, the prosecutor is immune from a civil suit for damages under §
1983”); Michaels v. New Jersey, 222 F.3d 118, 121-22 (3d Cir. 2000) (quoting Buckley v.
Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (“Prosecutors are entitled to absolute immunity for
actions as advocates before the grand jury and at trial even if they present unreliable or wholly
fictitious proofs”); Moore v. Middlesex Cnty. Prosecutors Office, 503 F. App'x 108, 109-10 (3d
Cir. 2012) (per curiam) (dismissal of complaint with prejudice based on absolute prosecutorial
immunity was proper). As such, this claim against Defendant Peterson will be dismissed with
prejudice.
7. Failure to Investigate
Plaintiff alleges that Police Officer Salvatore Valentino failed to conduct any investigation
when Plaintiff’s neighbors came to the police station to report that they had seen Ms. Wychoff’s
body in the driveway, but instead “went right to murder.” (Compl. at 122). However, police do
not have a constitutional duty to investigate a defendant’s protestations of innocence or to search
for evidence of affirmative defenses prior to making an arrest. See, e.g., Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 790 n. 8 (3d Cir. 2000) (stating police officer is “not required to undertake
an exhaustive investigation in order to validate the probable cause that, in his mind, already
existed”).

Because Officer Valentino was under no constitutional duty to investigate any

affirmative defenses for Plaintiff before an arrest, this claim will be dismissed without prejudice.

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III. CONCLUSION
For the foregoing reasons, Union County Prosecutor’s Office and Union Township Police
Department will be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915 and 1915A for failure
to state a claim upon which relief may be granted. The claim against Defendant Henderson for
his testimony to the grand jury, and against Defendant Peterson for his presentation of the case to
the grand jury, will also be dismissed with prejudice. All other claims will be dismissed without
prejudice. 5 Because it is conceivable that Plaintiff may be able to supplement his pleading with
facts sufficient to overcome the deficiencies noted herein, the Court will grant Plaintiff leave to
move to re-open this case and to file an amended complaint. 6 An appropriate Order follows.
s/ Esther Salas
Esther Salas, U.S.D.J.

5

To the extent the Complaint raises claims under New Jersey state law, the Court declines to
exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3) (district courts may decline to
exercise supplemental jurisdiction over a claim if the court has dismissed all claim's over which it
has original jurisdiction).
6

Plaintiff should note that when an amended complaint is filed, it supersedes the original and
renders it of no legal effect, unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v. Huntington National Bank,
712 F.3d 165, 171 (3d Cir. 2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid confusion, the
safer practice is to submit an amended complaint that is complete in itself. Id. If he submits an
amended complaint, Plaintiff is also reminded of the dictates of Federal Rule of Civil Procedure
8(a), which requires “a short and plain statement of the claim.” FED. R. CIV. P. 8(a) (emphasis
added).
17