EBUZOR-ONAYEMI v. UNION COUNTY POLICE DEPARTMENT et al
OPINION. Signed by Judge William J. Martini on 4/12/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Docket No.: 16-cv-1869
UNION COUNTY POLICE DEPARTMENT,
MEGHAN TOMLINSON, SHAWN BARNES,
DANIEL GALLAGHER, et al.,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Joy Ebuzor-Onayemi brought this action under 28 U.S.C. § 1983 against
the Union County Prosecutor’s Office (the “UCPO”), prosecutors Meghan Tomlinson and
Shawn Barnes, Union County police officer Daniel Gallagher, and Union County employee
Moshood Olushekun (collectively, “Defendants”). Plaintiff principally alleges that
Defendants violated the Due Process Clause of the Fourteenth Amendment by fabricating
evidence and using it to wrongfully convict her in state court of burglary and falsification
of records. The UCPO and Defendants Tomlinson, Barnes and Gallagher (the “moving
Defendants”) move to dismiss all claims. Because the claims against pro se Defendant
Moshood Olushekun are indistinguishable from the claims against the other Defendants,
the Court considers Olushekun to have joined the motion. For the reasons explained below,
Defendants’ motion is GRANTED as follows.
All Counts against the UCPO are DISMISSED with prejudice. As to all other
Defendants, the Complaint is DISMISSED without prejudice as to claims 1, 2, 3, 4, 5,
and 7, while Count 6 is DISMISSED with prejudice.
The following facts have been drawn from the Complaint unless otherwise
indicated. On April 2, 2014, Plaintiff was convicted in Union County, New Jersey, of
burglary and falsification of records. Events giving rise to the prosecution began on April
8, 2011, when Plaintiff was terminated from her position as assistant manager of Windsor
Way, a group home for individuals with developmental disabilities.1 The purported basis
for her firing was that Plaintiff had falsified residents’ medical records. The termination
led to a confrontation and police were called to the scene. Before leaving, Plaintiff handed
over to police what she represented to be the key to Windsor Way.
A. The prosecution’s theory of the case
According to prosecutors, Plaintiff intentionally handed in the wrong key and
withheld a second key to an office inside the Windsor Way building. Later that day,
prosecutors alleged, she used the actual keys to enter Windsor Way and remove certain
medical records. Plaintiff then gave a bag containing the stolen documents and two keys
to her boyfriend, Defendant Moshood Olushekun, then a Union County employee working
at the county courthouse. ECF No. 21. A state appeals court, which recently upheld the
conviction, described the following sequence of events:
[Olushekun] testified that defendant2 told him that she had turned over the
wrong key and she had then gone to the group home and taken some
documents. Defendant then handed [Olushekun] a black nylon shopping bag
that contained documents and asked [Olushekun] to hold the bag for her.
Several months later, defendant asked [Olushekun] to get rid of the bag.
Although [Olushekun] told defendant he had discarded the bag, he actually
continued to hold it. In June 2011, [Olushekun] and defendant ended their
romantic relationship, but they continued to live together. Thereafter, their
relationship became contentious . . .
In 2013, a detective with the Union County Prosecutor's Office came to see
[Olushekun] and asked if he had any information relating to the criminal
charges that had been filed against defendant. [Olushekun] initially told the
detective that he had no such information, but several months later he
disclosed that he had the bag that defendant had given him on April 8, 2011.
[Olushekun] then turned over the bag to the detective. The bag contained
medical records taken from Windsor Way and two keys to that home. The
bag and its contents were introduced as evidence at defendant's criminal trial.
State v. Ebuzor-Onayemi, 2016 WL 3563190, at *1 (N.J. Super. Ct. App. Div. July
1, 2016). The stolen documents and the keys allegedly produced by Olushekun were
evidence necessary for prosecuting Plaintiff. At trial, Plaintiff denied taking the medical
records and denied that she entered Windsor Way. The jury nonetheless found her guilty
Plaintiff’s employer while at Windsor Way was Our House, Inc (“Our House”).
“Defendant” refers to the plaintiff in the instant matter, Joy Ebuzor-Onayemi (otherwise
referred to as “Plaintiff” in this opinion).
of burglary and falsification of records, and she was sentenced to three years of probation.3
An appeal was denied on July 1, 2016 by the Superior Court, Appellate Division. Id.
B. Plaintiff’s account of the events leading to her conviction
Plaintiff maintains that her conviction was the result of a conspiracy to “secure a
conviction at all costs,” and that the keys and medical records were fabricated evidence.
ECF No. 26, at 15. She alleges that Olushekun never had possession of the keys, so could
not have provided them to police; that Officer Gallagher’s Property Receipt of June 6,
2013, which describes the bag’s contents, did not refer to a key, Compl., Ex. 1; and that an
Investigation Report also drafted on June 6, 2013 similarly failed to mention a key. See id.
The earliest documentation of the keys is Officer Gallagher’s September 9, 2013
report describing a “marble notebook” containing a single brass key, apparently included
in the bag of evidence provided by Olushekun. Compl. ¶ 38. On March 4, 2014, shortly
before trial, Prosecutor Meghan Tomlinson discovered the second key, also inside the
marble notebook. Id. at ¶ 46. This finding was significant because Plaintiff would have
needed both keys to commit the burglary. Id. Plaintiff characterizes the discovery of the
second key as “implausible”; she argues that the notebook allegedly containing the keys
had already been handled and photocopied months earlier, such that “the second key would
have fallen” long before the notebook reached Tomlinson. Id. at ¶ 47-48. “[C]ontrarily,”
Plaintiff argues, “[the key] did not appear until right before trial.” ECF No. 26, at 6. In sum,
Plaintiff argues she was framed.
C. Proceedings before the Court
Plaintiff brought this action seeking damages on April 1, 2016, alleging that
Defendants fabricated evidence that resulted in her wrongful conviction. Preliminarily, the
Court notes that Plaintiff agreed in her opposition brief to dismiss Count 2 (42 U.S.C. §
1985), Count 4 (failure to intervene); Count 5 (civil conspiracy); and Count 7 (respondeat
superior). ECF No. 26, at 20. The Court DISMISSES those claims without prejudice.
Plaintiff also concedes that the UCPO enjoys immunity from all Counts pursuant to the
Eleventh Amendment. Const. Amend. XI. Accordingly, all Counts against the UCPO are
DISMISSED with prejudice.
The analysis below pertains to the three remaining Counts (Counts 1, 3, and 6).
Count 1 states under 42 U.S.C. § 1983 that Defendants’ misconduct violated the Due
Process Clause of the Fourteenth Amendment. Const. Amend. XIV. Count 3, also brought
under § 1983, alleges a conspiracy to fabricate evidence in deprivation of Plaintiff’s
constitutional rights. Lastly, Count 6 alleges intentional infliction of emotional distress
Plaintiff alleges that, because of her conviction, she “cannot gain meaningful employment”; she
also alleges that police “distributed a Press Release . . . outlining the conviction of Plaintiff and
further ensuring damage to Plaintiff’s livelihood and reputation.” Compl. ¶ 5.
under New Jersey law. Remaining Defendants who are joined in this motion are Union
County Prosecutors Meghan Tomlinson and Shawn Barnes and Officer Daniel Gallagher.
The Court also considers pro se Defendant Moshood Olushekun to have joined in the
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a 12(b)(6) motion, the
Court must accept as true all allegations in the complaint, and all reasonable inferences that
can be drawn therefrom, and view them in the light most favorable to the plaintiff. See
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
Plaintiff’s Fourteenth Amendment due process claims brought under § 1983 create
subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Section 1983 provides: “Every
person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . [causes] 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.” 42 U.S.C. §
1983. The Court finds that Counts 1 and 3 fail to state claims under § 1983, and that Count
6, intentional infliction of emotional distress, is barred by the notice provision of the New
Jersey Tort Claims Act (the “NJTCA”). The rest of the claims were voluntarily dismissed
in Plaintiff’s opposition brief, so they require no analysis. ECF No. 26, at 20.
A. Claims under Section 1983 (Counts 1 and 3)
Count 1 asserts a fabrication-of-evidence claim arising from the Due Process Clause
of the Fourteenth Amendment, asserted under 28 U.S.C. § 1983. Count 3 alleges a
conspiracy to fabricate evidence in violation of the Due Process Clause, also under § 1983.
In fact, these claims are not cognizable under § 1983 because they necessarily impugn the
validity of an extant state conviction, in violation of Heck v. Humphrey 512 U.S. 477, 487
(1994). Counts 1 and 3 fail.
a. Count 1 - Fabrication-of-Evidence Due Process Claim
In the Third Circuit, fabrication-of-evidence is a freestanding constitutional tort.
“[A] criminal defendant has been denied due process of law if [she] is convicted on the
Rather than move to dismiss, Defendant Olushekun instead filed an Answer pro se on August
11, 2016 denying all claims. ECF No. 13. The Court reads the Answer as asserting failure to
state a claim upon which relief can be granted. See 12(h)(2)(A) (“Failure to state a claim . . . may
be raised  in any pleading allowed or ordered under Rule 7(a) . . ..”).
basis of fabricated evidence.” Halsey v. Pfeiffer, 750 F.3d 273, 290, 293-94 (3d Cir. 2014)
(“We emphatically reject the notion that due process of law permits the police to frame
suspects.”). To plead a fabrication-of-evidence due process claim, a plaintiff must show
not only that evidence was indeed fabricated, but also “a reasonable likelihood that, without
the use of that evidence, the defendant would not have been convicted.” Id. at 294.
Heck, meanwhile, prohibits federal courts from entertaining §1983 claims that, if
successful, “would necessarily imply the invalidity of [the plaintiff’s] conviction or
sentence . . . unless and until the conviction or sentence is reversed, expunged, invalidated,
or impugned by the grant of a writ of habeas corpus.” 512 U.S. at 486-89. Plaintiff’s
conviction and sentence have not been “reversed, expunged, invalidated or impugned.”
Because a fabrication-of-evidence claim must allege “a reasonable likelihood that . . . the
defendant would not have been convicted” without the fabricated evidence, and because
Plaintiff’s sentence and conviction remain standing, Heck prevents Count 1 from stating a
claim cognizable under § 1983. 512 U.S. at 486-89.
Although Heck involved the tort of malicious prosecution, which the Third Circuit
distinguishes from fabrication-of-evidence, Heck’s holding extends naturally to
fabrication-of-evidence claims. Echeverria v. Corvasce, 2014 WL 2094140, at *2 (D.N.J.
May 20, 2014) (“Plaintiff’s due process fabrication of evidence claim is barred by Heck
because a favorable judgment on the claim would necessarily imply the invalidity of
Plaintiff’s conviction . . .” ).5 This is particularly true where a plaintiff unambiguously
asserts that she “would not have been convicted” but for the unconstitutional use of
fabricated evidence by Defendants.
b. Count 3: Conspiracy to Deprive Plaintiff of Due Process
Count 3 alleges that Defendants formed a conspiracy to deprive Plaintiff of her
constitutional right to due process by fabricating evidence used to convict Plaintiff. This
Count fails for the same reason that Count 1 fails. To recognize an agreement among
Defendants to fabricate evidence to convict Plaintiff would assail the integrity of Plaintiff’s
extant conviction, in contravention with Heck. See, e.g., Amaker v. Weiner, 179 F.3d 48,
51-52 (2d Cir. 1999) (holding that Heck applies to § 1983 conspiracy claims). Count 3 fails.
Defendants’ motion to dismiss Counts 1 and 3 is GRANTED pursuant to Rule
12(b)(6), and those claims are DISMISSSED without prejudice. Plaintiff may amend or
refile her § 1983 claims should, for instance, her sentence be “declared invalid by a state
Plaintiff argues that the Heck bar should not apply because, in October 2014, several months
after she was convicted, a civil jury determined that she was not liable to employer Our House
for conversion and trover. Compl. ¶ 9. Whatever credibility that outcome lends credibility to
Plaintiff’s pending § 1983 claims, it does not disturb her conviction or sentence. Indeed,
Plaintiff’s conviction was recently upheld by a state appeals court. State v. Ebuzor-Onayemi,
2016 WL 3563190, at *1 (N.J. Super. Ct. App. Div. July 1, 2016).
tribunal authorized to make such determination.” See Curry v. Yachera, 835 F.3d 373,
379 (3d Cir. 2016) (finding that dismissal under Heck should not be ordered with
prejudice) (citing Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (“Disposition of the
case on Heck grounds ... warrants only dismissal without prejudice.”)).
B. Intentional Infliction of Emotional Distress (Count 6)
Count 6 asserts intentional infliction of emotional distress (“IIED”) under state
common law. In New Jersey, IIED consists of “intentional and outrageous conduct by the
defendant, proximate cause, and distress that is severe.” Tarr v. Ciasulli, 853 A.2d 921,
924 (N.J. 2004). Plaintiff alleges that the Defendants are liable for IIED because they
conspired to fabricate evidence and to convict her of a crime she did not commit. In
response, the moving Defendants argue, inter alia, that the limitations provision of New
Jersey’s Tort Claims Act (“NJTCA”) bars Plaintiff’s IIED claim. The Court agrees.
Claims against public entities or employees must be “presented in accordance with
the procedure set forth” in the NJTCA. N.J.S.A. § 59:8-3. One procedural requirement is
that a claim for damages must be brought within 90 days of accrual. § 59:8-8. In
“extraordinary circumstances,” a court may permit an untimely filing “any time within one
year after the accrual . . . provided that . . . the public employee has not been substantially
prejudiced thereby . . ..” § 59:8-9. “After the one-year limitation has passed, ‘the court is
without authority to relieve a plaintiff from his failure to have filed a notice of claim, and
a consequent action at law must fail.’” Noble v. City of Camden, 112 F. Supp. 3d 208, 234
(D.N.J. 2015) (quoting Pilonero v. Township of Old Bridge, 566 A.2d 546, 548 (N.J. Super.
Ct. App. Div., 1989)); Barbaria v. Sayreville Twp., 467 A.2d 259, 263 (N.J. Sup. Ct. App.
Div. 1983) (“Except on behalf of infants or incompetent persons, the one-year period is not
subject to further extension.”) (internal citations omitted). Plaintiff’s action accrued no later
than April 2, 2014, the date of her conviction, and she did not file this action until April 1,
2016. Her claim for IIED does not comply with NJTCA’s limitations provision.
Plaintiff argues that NJTCA should not bar her state tort claim because the
constitutional claims here supersede that statute’s limitations period. While it is true that
the NJTCA notice requirement does not bar federal or constitutional claims, the presence
of constitutional claims does not exempt the Complaint’s non-constitutional claims from
the NJTCA notice provision. See, e.g., County Concrete Corp. v. Town of Roxbury, 442
F.3d 159, 174 (3d Cir. 2006). Nor does the presence of constitutional claims somehow
constitutionalize ordinary common law claims, such as IIED, so as to move those claims
beyond the purview of the NJTCA. See id. Defendants’ motion to dismiss Count 6 is
GRANTED and the claim is DISMISSED with prejudice.
C. Claims against pro se Defendant Moshood Olushekun
Defendant Moshood Olushekun did not move to dismiss with the other Defendants.
He instead filed an Answer pro se on August 11, 2016, asserting, inter alia, that Plaintiff
failed to state a claim upon which relief could be granted.6 Where the deficiency of claims
against moving defendants “applies equally to the non-moving defendants,” courts may
grant dismissal of claims against non-moving defendants sua sponte. Michaels v. State of
N.J., 955 F. Supp. 315, 331 (D.N.J. 1996). Here, the § 1983 claims against Olushekun fail
pursuant to Heck v. Humphrey so long as Plaintiff’s conviction remains intact. See infra
pp. 4-5. The Court also notes that none of the seven Counts distinguishes among the
individual Defendants. Given Olushekun’s pro se status and the inadequacy of the claims
against him, the Court considers Olushekun to have joined in the motion to dismiss. See
Bintliff-Ritchie v. Am. Reinsurance Co., 285 F. App'x 940, 943 (3d Cir. 2008); Michaels,
955 F. Supp. at 331 (“[E]ven if a party does not make a formal motion to dismiss, the court
may, sua sponte, dismiss the complaint where the inadequacy of the complaint is clear.”).
See also Coulter v. Unknown Prob. Officer, 562 F. App'x 87, n.2 at 89 (3d Cir. 2014)
(“[W]e note that courts have upheld a district court's authority to sua sponte dismiss a
complaint for failure to state a claim against a non-moving defendant where it was clear
the plaintiff failed to state a claim for relief.”); Collura v. Ford, 2016 WL 409228, at *26,
n. 29 (E.D. Pa. Feb. 3, 2016) (Heck defense “is not waived by failure to plead it as an
affirmative defense.”) (citing Walker v. Munsell, 281 F. App’x 388, 389 (5th Cir. 2008)).
For the reasons above, the motion to dismiss is GRANTED pursuant to the
accompanying Order. All Counts against the Union County Prosecutor’s Office are
DISMISSED with prejudice. As to all other Defendants, Counts 1, 2, 3, 4, 5 and 7 are
DISMISSED without prejudice, while Count 6 is DISMISSED with prejudice.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
April 12, 2017
See 12(h)(2)(A) (“Failure to state a claim . . . may be raised  in any pleading allowed or
ordered under Rule 7(a) . . ..”).
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