FITZGERALD v. VIGGINANO et al

Filing 4

OPINION. Signed by Judge John Michael Vazquez on 5/20/2016. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MERVIN R. FITZGERALD,
Plaintiff,
v.
DET. DAVID KOTHER, et al.,
Defendants.

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Civil Action No. 15-7773 (JMV)

MEMORANDUM OPINION

APPEARANCES:
Mervin R. Fitzgerald, # 215668
Union County Jail
15 Elizabethtown Plaza
Elizabeth, NJ 07202
Plaintiff, pro se

VAZQUEZ, District Judge
Plaintiff Mervin R. Fitzgerald, a pretrial detainee confined at the Union County Jail in
Elizabeth, New Jersey, filed this civil rights action pursuant to 42 U.S.C. § 1983 (ECF No. 1),
and submitted an application to proceed in forma pauperis (ECF No. 1-1). On November 16,
2015, this Court found Plaintiff’s in forma pauperis application to be complete pursuant to 28
U.S.C. § 1915, and granted Plaintiff leave to proceed without prepayment of fees. (ECF No. 2).
At this time the Court must screen the Complaint to determine whether it should be
dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted,
or because it seeks monetary relief from a defendant who is immune from suit pursuant to 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. For the
reasons set forth below, the Complaint will be DISMISSED for failure to state a claim upon

which relief can be granted with the exception of one claim. The claim, however, will be stayed
pending the outcome of Plaintiff’s underlying criminal case.
I.

BACKGROUND

In his Complaint, Plaintiff states the following:
The Original Complaint warrant 2014-000340-2009 (see attachment) was dated
and issued on the 8th of April 2014. Eight days later upon approval of P. DeRose
and only signed by Det. David Kother the warrant was executed. Mr. Fitzgerald
was arrested and held on $200,000.00 cash bail. After 12 more days on April 28th
I was seen by a magistrate doing nothing to rectify the situation. Being remanded
to the Union County Jail I received a [sic] indictment filed August 7, 2014 from
Ms. Parks [sic]. The indictment minus the grand jury transcript have been a [sic]
impediment on my chance to prepare a fair defense. In belief that after putting
Ms. Parks in [sic] notice of this defective warrant also stating that this is no mere
technical error but one of a procedure matter. Every attempt on moving forward
would be malicious. Ms. Park and P. DeRose are the acting prosecutors of Union
County that is why I hold them responsible for the actions and practices of their
law division. After five hundred days being held unwarranted I filed a pro se
motion for dismissal of indictment after trying many times to contact my public
defender Brian McCormick. Case management sent me a letter on September 2,
2015 stating they received and are holding my motion. Then enclosed LR-20
form to be returned before filing. Then on September 21, 2015 I received a letter
from John R. Johnson First Asst. Deputy Public Defender stating he has forward
[sic] my motion [to] Mr. McCormick.
...
As of today October 23rd I have had two cancelled court dates and no response
from any party in this matter.
(Compl. 6-7, 8, ECF No. 1).
Plaintiff names three defendants. First, he names Detective David Kother of the Linden
Police Department. Plaintiff asserts that Mr. Kother “issued a complaint warrant not upon oath
or affirmation [and] served the warrant without any judicial’s [sic] officer signature or
determination of probable cause.” (Compl. 4, ECF No. 1). Next, Plaintiff names Grace H. Park
as a defendant. Plaintiff states that Ms. Park, who he states is the acting prosecutor of Union
County, was notified that the complaint warrant was defective, yet “continued to move on [the]

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faulty indictment” resulting in a violation of Plaintiff’s due process rights and “aiding in
malicious prosecution.” (Id.). Finally, Plaintiff names P. DeRose, who Plaintiff states is a Union
County prosecutor. Plaintiff asserts that P. DeRose “approved the complaint warrant issued not
by oath or affirmation, nor with the determination of probable cause by any magistrate or judicial
officer.” (Id. at 5). Plaintiff asks that this Court “restore [his] liberty immediately” and
compensate him and his family.
II.

STANDARDS OF REVIEW

A. Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub.L. 104–134, §§ 801–810, 110 Stat. 1321–66 to
1321–77 (Apr. 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 proceeding in forma pauperis and is seeking relief from
government employees.
Every complaint must comply with the pleading requirements of the Federal Rules of
Civil Procedure. Rule 8(a)(2) requires that a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” “[T]he statement need only ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

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“While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do . . . . Factual
allegations must be enough to raise a right to relief above the speculative level . . . .” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
That is, a complaint must assert “enough facts to state a claim to relief that is plausible on
its face.” Id. at 570. “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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The plausibility determination is ‘a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.’” Connelly v. Lane Const. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016) (quoting
Iqbal, 556 U.S. at 679); see also Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations
omitted). In addition, a court is “not bound to accept as true a legal conclusion couched as a
factual allegation,” and “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citations omitted).
In general, where a complaint subject to statutory screening can be remedied by
amendment, a district court should not dismiss the complaint with prejudice, but should permit
the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (noting that leave to amend should be granted “in the
absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment”),
cited in Thomaston v. Meyer, 519 F. App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

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Finally, in determining the sufficiency of a pro se complaint, the Court must be mindful
to accept its factual allegations as true, see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d
Cir. 2012), and to construe it liberally in favor of the plaintiff, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Nevertheless, “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).
B. 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 . . . .
42 U.S.C. § 1983.
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. West v. Atkins,
487 U.S. 42, 48, 108 S. Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011).
III.

DISCUSSION

In his Complaint, Plaintiff appears to assert claims for false arrest/false imprisonment,
and malicious prosecution.

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A. Claims Against the Prosecutors
1. Personal Involvement
In his Complaint, Plaintiff specifically states that “Ms. Park and P. DeRose are the acting
prosecutors of Union County that is why I hold them responsible for the actions and practices of
their law division.” (Compl. 7, ECF No. 1). However, the Third Circuit has “consistently held
that ‘[a] defendant in a civil rights action must have personal involvement in the alleged wrongs;
liability cannot be predicated solely on the operation of respondeat superior.’” Batts v. Giorla,
550 F. App’x 110, 112 (3d Cir. 2013) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988)); see also Tenon v. Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015) (§ 1983 claims
may not be based on vicarious liability, each defendant must have “personal involvement,
including participation, or actual knowledge and acquiescence, to be liable”). Aside from the
presence of these defendants’ signatures on Plaintiff’s complaint and indictment, and aside from
Plaintiff’s allegation that Ms. Park did not grant Plaintiff relief upon his assertion that his warrant
was defective, Plaintiff has not pled any facts which suggest that these defendants had any
personal involvement in a violation of his constitutional rights. Therefore, the claims against
these defendants will be dismissed.
2. Prosecutorial Immunity
Even assuming that Plaintiff had pled personal involvement as to Defendants Park and
DeRose, his claims against these defendants would fail. “[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. Pachtman, 424 U.S. 409, 418, 96 S. Ct. 984, 47
L.Ed.2d 128 (1976); LeBlanc v. Stedman, 483 F. App’x 666, 670 (3d Cir. 2012) (per curiam)
(finding prosecutors immune from suit where they are acting within the scope of their duties in a

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criminal prosecution and noting that the protection includes a prosecutor’s activities with
preparing and filing charging documents); Green v. United States, 418 F. App’x 63, 66 (3d Cir.
2011) (per curiam) (“[P]rosecutors enjoy immunity from suit for damages under § 1983 for
actions performed within their authority) (citations omitted); Darby v. Geiger, 441 F. App’x 840
(3d Cir. 2011). Therefore, to the extent Plaintiff’s claims against Defendants Park and DeRose
relate to actions within the scope of their prosecutorial duties, such as the initiation and pursuit of
a criminal prosecution, these claims will be dismissed with prejudice.
3. Malicious Prosecution
Finally, even assuming that prosecutorial immunity does not apply in this case, Plaintiff’s
claims for malicious prosecution against the defendant prosecutors fail. To state a claim for
malicious prosecution under § 1983, a plaintiff must show that: “(1) the defendants initiated a
criminal proceeding; (2) the criminal proceeding ended in the plaintiff’s favor; (3) the
proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered [a] deprivation
of liberty consistent with the concept of seizure as a consequence of a legal proceeding.”
McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009). Here, however, Plaintiff
concedes that the criminal proceeding against him is still ongoing. Therefore, he is unable to
satisfy the second element of a claim for malicious prosecution; namely, he cannot show that the
criminal proceeding ended in his favor. Accordingly, he has failed to state a claim under §
1983.1

This Court further notes that Plaintiff cannot seek relief under § 1983 if this Court’s
adjudication would call into question the validity of his criminal conviction, unless his conviction
first has been overturned on appeal or in state or federal collateral proceedings. See Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).
1

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B. Claims against Detective Kother
“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.” Mikhaeil
v. Santos, No. 15-2932, 2016 WL 1445083, at *3 (3d Cir. Apr. 13, 2016) (citing Groman v. Twp.
of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)); James v. City of Wilkes–Barre, 700 F.3d 675,
680 (3d Cir. 2012); Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988)). Here, Plaintiff
asserts a false arrest claim against Defendant Kother and alleges that his arrest was based on a
deficient warrant. See Berg v. Cty. of Allegheny, 219 F.3d 261, 269-70 (3d Cir. 2000) (“[A]n
erroneously issued warrant cannot provide probable cause for an arrest.”) (citing Whiteley v.
Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971)).
Under New Jersey State law, a warrant for arrest can be based on the complaint of any
individual, but must be signed by “a judge, clerk, deputy clerk, municipal court administrator or
deputy municipal court administrator.” N.J. CT. R. 3:3-1(a). In his Complaint, Plaintiff alleges
that Defendant Kother “served the warrant without any judicial officer signature or determination
of probable cause.” (Comp. 4, ECF No. 1). Plaintiff attaches a copy of the “complaint-warrant”
to his Complaint. (ECF No. 1-2). Indeed, this document is not signed by a court administrator,
deputy court administrator, or judge. Id. Therefore, at the pleading stage, it appears that
Plaintiff has properly pled that the complaint-warrant is technically deficient pursuant to New
Jersey Court Rule 3:3-1(a).2

To the extent Plaintiff asserts that the warrant was not issued “upon oath or affirmation”
(Compl. 4, 5), he is mistaken. In fact, Defendant Kother provided the “oath or affirmation” when
he certified as to the truthfulness of the statements in the complaint-warrant made in support of
probable cause. (ECF No. 1-2). The only deficiency in the complaint-warrant, therefore, is that it
is not properly signed by “a judge, clerk, deputy clerk, municipal court administrator or deputy
municipal court administrator” pursuant to N.J. Ct. R. 3:3-1(a).
2

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However, “[g]enerally speaking, the act of filing a criminal complaint does not constitute
an action taken under color of state law, since any individual may do so.” Sampson v. Sampson,
No. 10-2008, 2011 WL 2473389, at *4 (D.N.J. June 20, 2011) (collecting cases); see also
Kalina v. Fletcher, 522 U.S. 118, 130, 118 S. Ct. 502, 510, 139 L. Ed. 2d 471 (1997) (holding
that when a person makes the constitutionally required oath or affirmation regarding the facts
which give rise to probable cause for an arrest warrant, the “only function that she performs in
giving sworn testimony is that of a witness”). Therefore, to the extent Plaintiff asserts a claim
against Defendant Kother based on the fact that he “issue[d]” the allegedly deficient warrant, see
(Compl. 4, ECF No. 1), Plaintiff has failed to establish that Defendant Kother was acting under
color of state law and he has failed to state a claim under § 1983. See West, 487 U.S. at 48.
The Court notes that it is unclear from the Complaint precisely who executed the
allegedly deficient warrant and whether that individual had probable cause to arrest Plaintiff.
Plaintiff does not provide specific details regarding his arrest and states only that “the warrant
was executed” and “Mr. Fitzgerald was arrested.” (Compl. 6, ECF No. 1). However, the Court
notes that in describing Defendant Kother, Plaintiff states that Defendant Kother “served” the
warrant. In construing the pro se Complaint liberally as this Court must, see Haines, 404 U.S. at
520-21, it can be reasonably inferred that by stating that Defendant Kother “served” the warrant,
Plaintiff has pleaded that Defendant Kother, himself, executed the allegedly deficient warrant
and personally conducted a constitutionally violative seizure by arresting and detaining Plaintiff.
Therefore, to the extent Plaintiff asserts that Defendant Kother was the individual who conducted
the Fourth Amendment seizure without probable cause—as opposed to simply acting as the
complainant for the complaint-warrant—he has sufficiently pled a cause of action against
Detective Kother.

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This Court notes that in Younger v. Harris, the Supreme Court held that federal courts
may not enjoin pending state court criminal proceedings. 401 U.S. 37, 41, 91 S. Ct. 746, 749, 27
L. Ed. 2d 669 (1971). However, Plaintiff has adequately pled a lack of probable cause for his
arrest and detention from the time of his arrest on April 16, 2014 to the time a grand jury
returned an indictment against him on August 7, 2014 (Compl. 6-7, ECF No. 1), at which point
probable cause for his imprisonment and prosecution was established. See King v. Deputy Atty.
Gen. Del., 616 F. App’x 491, 497 n.6 (3d Cir. 2015) (quoting Rose v. Bartle, 871 F.2d 331, 353
(3d Cir.1989) (“[A] grand jury indictment or presentment constitutes prima facie evidence of
probable cause to prosecute.”). Therefore, because a determination by this Court as to the
existence of probable cause for that time period would not interfere with the ongoing state
criminal proceedings, the Younger abstention does not apply to Plaintiff’s false arrest/false
imprisonment claim against Defendant Kother. See, e.g., Carley v. Tkach, No. 07-3813SDW,
2008 WL 314565, at *5 (D.N.J. Jan. 30, 2008) (“This Court will allow Plaintiff's Fourth
Amendment claim to proceed past the sua sponte dismissal stage under 28 U.S.C. §§ 1915(e) and
1915A(b) against Defendants Tkach and Krulikowsky because these officers caused Plaintiff's
seizure pursuant to the improperly issued warrant.”).
Indeed, the Supreme Court has stated
[A] false imprisonment ends once the victim becomes held pursuant to such
process—when, for example, he is bound over by a magistrate or arraigned on
charges. . . . If there is a false arrest claim, damages for that claim cover the time
of detention up until issuance of process or arraignment, but not more. From that
point on, any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than detention itself.
Wallace v. Kato, 549 U.S. 384, 389-90, 127 S. Ct. 1091, 1096, 166 L. Ed. 2d 973 (2007) (citations
omitted) (emphasis in original).

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Nevertheless, Plaintiff, himself, does not distinguish between the time he spent
incarcerated pursuant solely to the warrant (April 16, 2014 to August 7, 2014) and the time he
has spent incarcerated since the grand jury returned an indictment. In fact, in the relief section of
his Complaint, Plaintiff seeks compensation for “everyday [sic] spent incarcurated [sic] in the
Union County Jail.” (Compl. 9, ECF No. 1). Accordingly, it is apparent that Plaintiff views his
continued incarceration and prosecution as an ongoing violation, and in his Complaint he seeks
damages for the entire time since his initial arrest. However, pursuant to the Supreme Court’s
holding in Wallace, any damages recoverable beyond August 7, 2014—the date the grand jury
returned an indictment—must be based on a malicious prosecution claim. And, as explained
above, Plaintiff cannot potentially succeed on a malicious prosecution claim until such time that
a criminal proceeding first ends in his favor.
Because some of the claims in the Complaint are unable to be fully litigated until the
conclusion of his criminal proceedings, the Court will stay Plaintiff’s claims for false arrest/false
imprisonment against Defendant Kother. “The power to stay a proceeding is derived from the
inherent power of a court to efficiently manage its own docket.” Ford Motor Credit Co. v.
Chiorazzo, 529 F. Supp. 2d 535, 541-42 (D.N.J. 2008) (citing Landis v. N. Am. Co., 299 U.S.
248, 254, 57 S. Ct. 163, 166, 81 L. Ed. 153 (1936) (“[T]he power to stay proceedings is
incidental to the power inherent in every court to control the disposition of the causes on its
docket with economy of time and effort for itself, for counsel, and for litigants.”)); see also
Bechtel Corp. v. Local 215, Laborers’ Int’l Union of N. Am., AFL-CIO, 544 F.2d 1207, 1215 (3d
Cir. 1976) (“A United States district court has broad power to stay proceedings.”). In reaching
this decision, this Court considered the fact that both Plaintiff’s malicious prosecution claim and
his false arrest/false imprisonment claims are based on a similar fact pattern—i.e., Plaintiff

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claims that the prosecutors’ actions were malicious because they moved forward with the
prosecution after being notified of the defective warrant (Compl. 7, ECF No. 1). The Court also
considered the possibility that the amount of damages which Plaintiff may be awarded if he
achieves success on the false arrest/false imprisonment claims may be affected by a conviction in
the underlying criminal proceeding and the receipt of jail time credit for time spent incarcerated
on the defective warrant. Accordingly, in the interests of justice and judicial economy, it is
prudent for this Court to stay this action pending the conclusion of Plaintiff’s criminal
proceedings.
C. Request for Immediate Release
To the extent Plaintiff seeks immediate release, his claims are not properly brought in a
civil complaint pursuant to 42 U.S.C. § 1983. Rather, after a criminal judgment has been entered
against him, and after he has exhausted his constitutional claims before all three levels of the
New Jersey state courts, Plaintiff can then present his constitutional claims in this Court in a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411
U.S. 475, 477, 93 S. Ct. 1827, 1830, 36 L. Ed. 2d 439 (1973).
IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s malicious prosecution claims against Defendants
Park and DeRose are dismissed without prejudice. Plaintiff’s Fourth Amendment claims against
Defendant Kother are facially plausible at this stage. For the reasons stated above, however, the
matter will be stayed pending the outcome of the underlying criminal action. The Clerk of the
Court will be ordered to administratively terminate this case.3 Plaintiff may apply to reopen by

Such an administrative termination is not a “dismissal” for purposes of the statute of limitations,
and if the case is re-opened pursuant to the terms of the accompanying Order, it is not subject to
the statute of limitations time bar if it was originally submitted timely. See Houston v. Lack, 487
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submitting a letter to the Court within 30 days after a judgment on his underlying criminal
proceeding becomes final.
An appropriate Order follows.
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
Date: 05/20/16

U.S. 266 (1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265,
275-76 (3d Cir. 2013) (collecting cases and explaining that a District Court retains jurisdiction
over, and can re-open, administratively closed cases).
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