AHMAD v. HUDSON COUNTY PROSECUTOR'S OFFICE NARCOTICS TASK FORCE et al

Filing 9

OPINION. Signed by Judge Jose L. Linares on 6/22/16. N/M(DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MUSADDIQ AHMAD,

Civil Action No. 15-8994 (JLL)

Plaintiff,

v.

OPINION

HUDSON COUNTY PROSECUTOR'S
OFFICE NARCOTICS TASK FORCE,
Defendants.

LINARES, District Judge:

Currently before this Court is the amended complaint of Plaintiff, Musaddiq Ahmad.
(ECF No. 7). Because this Court has granted Plaintiff in forma pauperis status, this Court is
required to screen the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Pursuant to these statutes, this Court must dismiss Plaintiff's claims if they are frivolous,
malicious, fail to state a claim for relief, or seek damages from a defendant who is immune. For
the reasons set forth below, this Court will dismiss Plaintiff's amended complaint without
prejudice in its entirety.

I. BACKGROUND

Plaintiff is a convicted state prisoner currently incarcerated in the Southern State
Correctional Facility in New Jersey. (ECF No. 1). Plaintiff seeks to raise civil rights claims
against numerous law enforcement officials arising out of his arrest. In his amended complaint,
Plaintiff presents the following basic facts.
Plaintiff became known to the police when his sale of narcotics was brought to the
attention of the Hudson County Prosecutor's Office Narcotics Task Force by a confidential

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informant ("CI") who had had dealings with Plaintiff under the name "Ghetto." (ECF No. 7 at
3). Although the police did not initially know the true identity of "Ghetto," they ultimately
discovered him to be Plaintiff when they subpoenaed Plaintiffs cellphone carrier for the identity
of the person using the phone number the CI had attributed to "Ghetto." (Id.). Following an
incident wherein officers surveilled Plaintiff as he sold a controlled substance, specifically
MDMA, to the CI, (see Document 1 attached to ECF No. 7 at 18-19), the police ultimately
sought and were granted warrants to search Plaintiff and his vehicle in late December 2013.
(ECF No. 7 at 3). According to Plaintiff, those warrants, however, expired on December 30,
2013, without being used. (Id. at 3-4). According to the reports of various officers Plaintiff
attaches to his complaint, the officers had their CI conduct a second controlled buy of a
controlled substance from Plaintiff on December 18, 2013. (Id. at 4; Document 1 attached to
ECF No. 7 at 20-22).
Police arrested Plaintiff on January 14, 2014, pursuant to a valid bench warrant stemming
from Plaintiffs failure to pay child support. (ECF No. 7 at 3-4). The police searched Plaintiff
incident to that arrest and seized contraband including a plastic bag containing a white powdery
substance police believed to be Methylone and a second plastic bag containing what appeared to
be marijuana. (ECF No. 7 at 3-4; Document 1 attached to ECF No. 7 at 25-26). Plaintiff was
thereafter charged with possession with intent to distribute the Methylone within 1000 feet of a
school and within 500 feet of a public park, as well as possession ofless than 50 grams of
marijuana. (Document 1 attached to ECF No. 7 at 26).

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II. DISCUSSION
A. Legal Standard
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (April 26, 1996) ("PLRA"), district courts must review complaints in those civil
actions in which a prisoner is proceeding informa pauperis, see 28 U.S.C. § 1915(e)(2)(B), or
seeks damages from a state employee, see 28 U.S.C. § 1915A. 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 convicted prisoner who has been granted in

forma pauperis status and is bringing suit against employees of a governmental entity.
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 1, 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 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

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"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 28 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287 F. App'x
159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while prose
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).

B. Analysis
Plaintiff, in his complaint, seeks to raise claims against numerous police officers, the City
of Jersey City, Verizon Wireless, and the police officers' CI for alleged violations of his
constitutional rights pursuant to 42 U.S.C. § 1983. "To establish a claim under 42 U.S.C. §
1983, a plaintiff must demonstrate a violation of a right protected by the Constitution or laws of
the United States that was committed by a person acting under the color of state law." Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000); see also Woodyard v. Cnty. of Essex, 514 F. App'x
177, 180 (3d Cir. 2013) (section 1983 provides "private citizens with a means to redress
violations of federal law committed by state [actors]"). "The first step in evaluating a section
1983 claim is to 'identify the exact contours of the underlying right said to have been violated'
and to determine 'whether the plaintiff has alleged a deprivation of a constitutional right at all."'
Nicini, 212 F.3d at 806 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)).
Here, Plaintiff attempts to assert claims against defendants for false arrest and false
imprisonment, illegal search, malicious prosecution, malicious abuse of process, and for alleged
violations of the rule announced in Brady v. Maryland, 373 U.S. 83, 87 (1963). Plaintiff also
mentions, but does not truly attempt to plead a selective enforcement claim, and asks this Court
to take supplemental jurisdiction over a state law invasion of privacy claim against Verizon.

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1. Plaintiff fails to state a claim as to the City of Jersey City

Initially, the Court notes that Plaintiff names as a Defendant in this matter the City of
Jersey City. Plaintiff, however, pleads no facts regarding the city which would connect it to the
alleged violations other than the actions of the various Jersey City police officers. Section 1983,
however, does not permit recovery for alleged constitutional infractions under vicarious theories
ofliability, and a civil rights action therefore cannot be predicated solely on the operation of
respondeat superior. See Iqbal, 556 U.S. at 675-76; see also Rode v. Dellarciprete, 845 F.2d
1195, 1207-08 (3d Cir. 1988) (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"). As Plaintiff has pled no other basis for a claim against the city, and has
certainly not pled that any policy, ordinance, or practice instated by the city led to the alleged
violations, the city must be dismissed from this action as Plaintiff has failed to state a claim
against it. See Los Angeles Cnty. v. Humphries, 562 U.S. 29, 35-36 (2010); Monell v. New York

City Dep 't ofSocial Servs., 436 U.S. 658, 690-91 (1978).

2. Plaintiff fails to state a claim for false arrest/false imprisonment, illegal search, and
selective enforcement
As this Court previously explained to Plaintiff, "[f]alse imprisonment and false arrest
claims under§ 1983 are two halves of the same coin, and they share the same necessary
elements: that a plaintiff was arrested and incarcerated, and that his arrest was not based on
probable cause. See Groman v. Twp. of Manalapan, 4 7 F .3d 628, 636 (3d Cir. 1995); see also

Berg v. Cnty. ofAllegheny, 219 F.3d 261, 268-69 (3d Cir. 2000); Johnson v. Provenzano, --- F.
App'x ---, ---, 2016 WL 1459545, at *2-3 (3d Cir. Apr. 14, 2016)." (ECF No. 6). The inherent

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problem with Plaintiffs claims, however, is that Plaintiff himself admits that he was arrested in
this matter pursuant to an outstanding warrant for his arrest for his failure to pay child support,
and that he was later imprisoned because a search incident to his arrest revealed that he was in
possession of marijuana and another controlled substance at the time of his arrest. Clearly, an
arrest warrant for an outstanding civil violation, such as the warrant for a failure to pay child
support on which Plaintiff was arrested, provides the police with probable cause to arrest an
individual. See, e.g., Utah v. Strieff, --- U.S.---,---, 2016 WL 3369419, at* (June 20, 2016) (an
outstanding civil traffic violation based arrest warrant confers probable cause to arrest and
authorizes a search incident to that arrest). Thus, Plaintiff was not arrested without probable
cause, and he cannot make out a false arrest claim.
To the extent that Plaintiff otherwise attempts to suggest that his incarceration on drug
charges following that arrest was improper, that claim is essentially based on Plaintiffs assertion
that the officers were not permitted to search him incident to his arrest on a civil arrest warrant
for failure to pay child support, and that the discovery of drugs on his person amounted to an
illegal search. 2 Plaintiff, however, is incorrect. As the Supreme Court has recently explained,
"A warrant is a judicial mandate to an officer to conduct a search or
make an arrest, and the officer has a sworn duty to carry out its
provisions." United States v. Leon, 468 U.S. 897, 920 n. 21 ( 1984)
(internal quotations marks omitted). [An officer's arrest of a person
on an outstanding warrant is] thus a ministerial act that [is]
independently compelled by the pre-existing warrant. And once [an
officer is] authorized to arrest [a defendant under a pre-existing
warrant], it [is] undisputedly lawful to search [that defendant] as an
incident of his arrest to protect [the officer's] safety. See Arizona v.

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To make that argument, Plaintiff relies on cases dealing entirely with New Jersey's caselaw
dealing with domestic violence search warrants which do not require probable cause. See, e.g.,
State v. Dispoto, 913 A.2d 791 (2007). Plaintiff, however, was not searched pursuant to such a
warrant, but by his own admission was arrested on an outstanding bench warrant for failure to
pay child support. Thus, the cases Plaintiff cites are of no moment here.
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Gant, 556 U.S. 332, 339 (2009) (explaining the permissible scope
of searches incident to arrest).
Striejf, --- U.S. at---, 2016 WL 3369419 at *4. Thus, because there was a pre-existing warrant
for Plaintiff's arrest, the officers had probable cause to arrest him, and, under the search incident
to arrest doctrine, had authorization to search Plaintiff's person and area of immediate control for
weapons or contraband. Id.; Gant, 556 U.S. at 339 (search incident arrest doctrine permits
officers performing a valid arrest to search a defendant's person and the area within his
immediate control for weapons he might use and any evidence of wrongdoing he might conceal
or destroy). That the evidence recovered is evidence of a crime other than that for which the
warrant was issued is of no moment when that evidence is found on the person of the one being
arrested. Striejf, --- U.S. at---, 2016 WL 3369419 at *4-6.
Plaintiff, in his amended complaint, does not dispute that there was an outstanding
warrant for his arrest for failure to pay child support. Thus, he was arrested pursuant to a valid
warrant and there was no false arrest here. Likewise, because he was searched incident to that
arrest and contraband was recovered as part of that search, the search in this matter was
authorized by Plaintiff's arrest and was not an unlawful search. That this lawful search incident
to arrest produced two controlled substances in tum provides both probable cause to arrest
Plaintiff on drug charges, and probable cause to thereafter hold him on those charges. There was
thus cause to both arrest Plaintiff on the outstanding warrant and probable cause to imprison
Plaintiff based on the drugs seized on his person. Thus, Plaintiff has failed to plead false arrest,
false imprisonment, or that he was illegally searched. 3 Indeed, Plaintiff has specifically pled

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Plaintiff also attempts to assert that the search of his person during his arrest was improper
under Levinson-Roth v. Parries, a case in which the District of Maryland held that repeated pat
down searches of an individual arrested pursuant to a child support warrant exceeded the
authorization provided by a search incident to arrest and therefore were unreasonable. 872 F.
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facts which defeat all three of those claims. Those claims must therefore be dismissed without
prejudice for failure to state a claim for which relief may be granted.
In his amended complaint, Petitioner also mentions that he intends to assert a claim for
selective enforcement based on the assertion that the Jersey City police do not, in the ordinary
course, enforce all outstanding child support warrants, but did so in his case. In order to plead a
selective enforcement claim, a plaintiff must assert that he was treated differently by law
enforcement personnel than other similarly situated individuals and that the reason for this
difference in treatment was an improper basis "such as race, or religion, or some other arbitrary
factor, ... or to prevent the exercise of a fundamental right." Hill v. City ofScranton, 411 F.3d
118, 125 (3d Cir. 2005). Plaintiff does not plead any instances of individuals other than himself
being treated differently other than to assert that the police do not usually hunt down all those
with an outstanding child support arrest warrant. Plaintiff likewise fails to plead any facts which
would suggest that any difference in treatment was the result of an improper motive. Indeed, the
documents Plaintiff attaches to his complaint suggest that the police enforced this warrant
because they were already in the process of investigating Plaintiff for drug sales and in that
process discovered the outstanding warrant, which they then enforced. As such, Plaintiff has not

Supp. 1439 (D. Md. 1995). Even were that case binding upon this Court, which it is not, the
District of Maryland in Levinson-Roth did not find problematic that the plaintiff was searched
incident to arrest, which is entirely proper, but instead the fact that she was searched as many as
six times following her arrest, which that court found suspect and to go beyond the authorization
of the search incident arrest exception to the warrant requirement of the Fourth Amendment.
Id.at 1449-50. Thus, Levinson-Roth provides Plaintiff no support as nothing in Plaintiff's
complaint suggests Plaintiff was searched more than once, or that that search exceeded the
authorization of the search incident to arrest exception.

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pied a claim for selective enforcement, and that claim must be dismissed without prejudice for
failure to state a claim. 4

3. Plaintiff has failed to state a claim for malicious prosecution or malicious abuse of
process

Plaintiff also attempts to re-plead his malicious prosecution claim and add a claim for
malicious abuse of process. As this Court has previously explained to Plaintiff, a prisoner may
not bring a malicious prosecution claim without showing that the prosecution in question
terminated in his favor. See Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014). Although
Plaintiff states that he is currently pursuing a petition for post-conviction relief in the state courts,
he essentially admits in his complaint that his criminal charges resulted in his criminal
conviction. As Plaintiff was convicted, his prosecution clearly did not terminate in his favor, and
Plaintiff has thus failed to state a claim for malicious prosecution against any of the Defendants.
Plaintiff also attempts to assert a claim for malicious abuse of process under § 1983.
Unlike a malicious prosecution claim, a claim under § 1983 for malicious abuse of process

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Plaintiff asserts that he is not required to plead a claim for selective enforcement, but instead
that he is entitled to discovery to determine whether such a claim can be made out, relying on
State v. D.R.H., 604 A.2d 89 (N.J. 1992), and United States v. Faulk, 479 F.2d 616, 620-21 (7th
Cir. 1973 ). Faulk provides no support for this assertion, as the plaintiff in that case had alleged
sufficient facts to suggest that his criminal prosecution was based improperly on his use of his
freedom of speech. 479 F.2d t 620-21. That the Seventh Circuit required the Government to
plead a lack of discrimination in its prosecution of Faulk was a result of the fact that Faulk had
raised selective prosecution not as a stand-alone civil claim but as a criminal defense which the
Government was required to disprove, and because actual evidence of selectivity had been
shown. Id. D.R.H. likewise offers no support for Plaintiffs assertion in so much as that is a case
dealing with a defendant's entitlement to a second physical examination of his victim in a sexual
assault criminal case in New Jersey state court and is completely silent as to selective
enforcement. 604 A.2d at 90-98. This Court is aware of no reason why selective enforcement
would be excepted from the normal pleading requirements, and no caselaw exists to support such
an assertion of which this Court is aware.
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requires a Plaintiff to show that his "prosecution [wa]s initiated legitimately and thereafter [wa]s
used for a purpose other than that intended by the law." Rose v. Bartle, 871 F.2d 331, 350 n. 17
(3d Cir. 1989); see also Harris v. Zyskowski, No. 12-7191, 2013 WL 6669186, at *6 (D.N.J. Dec.
18, 2013 ). Here, Plaintiff does not allege that his criminal prosecution was used for any purpose
other than to convict him of various drug distribution crimes, which is clearly the purpose of
criminal prosecution. As such, he has failed to plead a claim for malicious abuse of process.
Even were this not the case, Plaintiff fails to plead how any of the named Defendants actually
misused his criminal prosecution, and would fail to state a claim for that reason as well.

4. Plaintiff's Brady claim is barred until such time as his conviction is invalidated
Plaintiffs final§ 1983 claim is essentially a claim that he was denied due process in so
much as he alleges that the prosecutor failed to tum over the identity of the CI involved in this
case until trial, and that this failure amounts to a violation of the Brady doctrine. While this
Court notes that Plaintiff specifically chose not to name the prosecutor as a Defendant in his
amended complaint, Plaintiff attempts to present his Brady claim based upon the prosecutor's
actions rather than those of any named Defendant. Thus, as to the named Defendants, Plaintiff
has failed to make any allegations as to how they violated his rights under Brady. In any event,
Plaintiffs Brady claim is barred because Plaintiff was convicted of the underlying crimes. As
the Third Circuit has explained
a meritorious Brady claim, by definition, implies the invalidity of
the attendant criminal conviction. See Strickler v. Greene, 527 U.S.
263, 281 [(1999)] ("[T]here is never a real 'Brady violation' unless
the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a
different verdict."). [A § 1983] Brady claim is therefore barred by
the rule of Heckv. Humphrey, 512 U.S. 477 (1994)[, until such time
as the plaintiffs conviction has been overturned]. See, e.g., Amaker
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v. Weiner, 179 F .3d 48, 5 (2d Cir. 1999) (holding that Brady claims
implicate the validity of the resulting conviction and are thus barred
by Heck).
Dukes v. Pappas, 405 F. App'x 666, 668-69 (3d Cir. 2010). Thus, even if Plaintiff had pied facts
sufficient to show that Defendants had somehow violated Brady by failing to provide the name
of their CI in their police reports, Plaintiffs claims would be barred until such time as he
successfully has his conviction invalidated through a petition for post-conviction relief or
petition for a writ of habeas corpus. See Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005); Heck,
512 U.S. at 481. Plaintiffs Brady claim is thus barred and must be dismissed without prejudice.

5. Plaintiff's state law claims
In addition to his § 1983 claims, Plaintiff asks this Court to take supplemental jurisdiction
over several state law claims, including a purported claim that his phone carrier violated his right
to privacy by responding to a grand jury subpoena requesting the name of the owner of
Petitioner's cell phone number. As this Court has now dismissed all claims over which it would
have original jurisdiction, this Court declines to extend supplemental jurisdiction over Plaintiffs
state law claims, including those against Verizon. See 28 U.S.C. § 1367(c)(3). Because this
Court has dismissed all claims over which it has original jurisdiction, and because this Court
therefore declines to extend supplemental jurisdiction over Plaintiffs purported state law claims,
Plaintiffs amended complaint shall be dismissed without prejudice in its entirety.

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III. CONCLUSION
For the reasons stated above, this Court will dismiss Plaintiff's amended complaint
without prejudice in its entirety. An appropriate order follows .

. Jose L. Linares,
nited States District Judge

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