BIAGGI-PACHECO v. THE CITY OF PLAINFIELD et al

Filing 10

MEMORANDUM AND ORDER granting 3 Motion to Dismiss Counts I and VII insofar as they are asserted against the State; GRANTED as toall Counts insofar as they are asserted against UCPO; and otherwise DENIED. Plaintiff is granted leave to file an amended complaint within 30 days. Signed by Judge Kevin McNulty on 1/30/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HECTOR BIAGGI-PACHECO,

Civ. No. 16-3511 (KM)

Plaintiff,
MEMORANDUM
and ORDER
THE CITY OF PLAINFIELD, PLAINFIELD
CITY POLICE DEPARTMENT, UNION
COUNTY PROSECUTOR, UNION COUNTY
PROSECUTOR’S OFFICE, STATE OF NEW
JERSEY, NEW JERSEY DEPARTMENT OF
THE TREASURY, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Hector Biaggi-Pacheco, alleges in his complaint, removed
from State court, that the defendants wrongfully arrested and detained him
without probable cause. Now before the Court is a motion (ECF no. 3) to
dismiss this complaint, removed from State court, for failure to state a claim,
pursuant to Fed. R. Civ. P. 12(b)(6). The motion is brought by the Union
County defendants (“UCPO”), as well as the State of New Jersey, and the New
Jersey Department of the Treasury (the “State”). The Plainfield defendants have
answered the complaint, and are not involved in this motion.
I will dismiss certain obviously defective claims. I have, however, granted
leave to amend the complaint, and I anticipate that the allegations may be
supplemented or altered. I have therefore put off consideration of certain
matters raised in the motion to dismiss, but have included some legal
discussion to guide subsequent proceedings in this case.

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I.

BACKGROUND
The relevant background consists of the allegations of the Complaint

(“Cplt.”, ECF no. 1 at 8) Those allegations, not yet tested by any fact finder, are
assumed to be true for purposes of this motion only. See Section II, infra.
The plaintiff, Mr. Biaggi-Pacheco, is a resident of Plainfield, New Jersey.
On December 5, 2014 (apparently),’ the Plainfield police arrested him on drug
charges. The plaintiff maintains that there was no evidence to support the
charges, and that he was innocent of them. The charges, he alleges, were
voluntarily dismissed on January 16, 2015. Mr. Biaggi-Pacheco was
nevertheless held in Union County Correctional Institute until January 22,
2015, when he was released. These actions are alleged to have been part of a
policy and practice of the UCPO and the State, by which violations of Plainfield
citizens’ civil rights were encouraged and condoned. (Cplt., Facts Common to
All Counts,

¶J 1—8)

The complaint asserts seven causes of action for damages:
Count I:

Wrongful arrest and malicious prosecution (42 U.S.C.
1983)

Count II:

Wrongful or false imprisonment

Count III:

Malicious prosecution

Count IV:

Intentional infliction of emotional distress

Count V:

Abuse of process

Count VI:

§

Negligence

The date of arrest is taken from the plaintiff’s responding brief on this motion.
Attached to that brief is a New Jersey Promis/Gavel printout that appears to confirm
an arrest date of December 5, 2014, and an administrative dismissal as of January
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16, 2015. (ECF no. 5-3) Also attached is a Union County Verification of Incarceration

showing a release date of January 22, 2015. (ECF no. 5-4) These are public records of
which I may take judicial notice on a motion to dismiss. See In re Asbestos Products
Liability Litigation (No. VI), 822 F.3d 125, 134 & n.7 (3d Cir. 2016); S. Cross Overseas
Agencies, Inc. v. WahKwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999).
The Complaint gives the date of arrest as January 16, 2015 (the same date the
charges were dismissed). (Cplt., Introduction ¶ 1) I take that to be a mere scrivener’s
error, because the complaint also alleges that the plaintiff was held for a month and a
half. (Cplt., Facts Common to All Counts ¶ 2)
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Count VII:

New Jersey Civil Rights Act (N.J. Stat. Ann.

§ 10:6-2)

All counts are alleged against Defendants generally.
The Complaint was originally filed in the Superior Court of New Jersey,
Union County, under docket no. UNN-L-1647-16. On June 16, 2016, UCPO
and the State removed it to federal court on the basis of this Court’s subject
matter jurisdiction over federal law claims under 42 U.S.C.

§ 1983. (Notice of

Removal, ECF no. 1)
On July 1, 2016, UCPO and the State filed their motion to dismiss the
complaint. (ECF no. 3) On August 1, 2016, the plaintiff filed a response (ECF
no. 5), and on December 19, 2016, UCPO and the State filed a reply (ECF no.
8). Defendants the City of Plainfield and the Plainfield Police Department have
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not moved to dismiss, but have filed an Answer to the Complaint (ECF no. 6).

II.

STANDARD OF REVIEW
FED. R. CIV. P. 12(b)(6) provides for the dismissal of a complaint, in whole

or in part, if it 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). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
FED. R. Civ. P. 8(a) does not require that a complaint contain detailed

In drafting an amended complaint, the plaintiff may also consider that the
Plainfield Police Department (as opposed to the City of Plainfield itseli) is not an
independent entity with the capacity to be sued. See N.J. Stat. Ann. § 40A: 14—118
(municipal police department is “an executive and enforcement function of municipal
government”); Buffaloe v. City of Plainfielci, No. CIV.A. 12-03295 ES, 2013 WL
2182327, at *2 (D.N.J. May 20, 2013) (dismissing § 1983 and state tort claims against
Plainfield Police Department because it is merely a department of City government,
“not a separate judicial entity from the City of Plainfield”).
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factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’

...

it asks for more than a sheer possibility.” Iqbal, 556

U.S. at 678 (2009).
The United States Court of Appeals for the Third Circuit has provided a
three-step process for analyzing a Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta [v. US. Immigration & Customs Enforcement,
643 F.3d 60, 73 (3d Cir. 2011)]. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Accord Carpenters
Health and Wefare Fund of Philadelphia v. Management Resource
Systems, Inc., 837 F.3d 378, 382 (3d Cir. 2016) (citing Bistrian).

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III.

THE STATE’S AMENABILITY TO SUIT UNDER

§ 1983 and NJCRA

The State moves to dismiss the Complaint because it is not amenable to

§ 1983 or the parallel provisions of
the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-2. By their
suit as a “person” under either 42 U.S.C.

terms, these grounds apply only to Counts I and VII.
Section 1983 imposes liability on “[e]very persona who, acting under color
of any statute, ordinance, regulation, custom, or usage, of any State” subjects
a person to a deprivation of certain rights. 42 U.S.C.

§ 1983 (emphasis added).

The State itself, however, is a sovereign, not a “person” within the meaning of
Section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64—66, 109 S.
Ct. 2304, 2308—10 (1989). State officials, of course, “literally are persons. But a
suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office.

.

.

.

As such, it is no

different from a suit against the State itself.” Id. at 71, 109 S. Ct. at 2312; see
also Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3104 (1985)

.

The upshot, then, is that “neither a State nor its officials acting in their official
capacities are ‘persons’ under

§ 1983.” Hafer v. Melo, 502 U.S. 21, 26, 112 S.

Ct. 358, 362 (1991) (quoting Will, 491 U.S. at 71, 109 S. Ct. at 2312).

§ 1983, grants a cause of
action against “a person acting under color of law.” N.J. Stat. Ann. § 10:6-2
The New Jersey Civil Rights Act (“NJCRA”), like

(emphasis added). A “person” does not include the State of New Jersey. Didiano
v. Balicki, 488 F. App’x 634, 638 (3d Cir. 2012) (citing definition of “person” in
N.J. Stat. Ann.

§ 1:1-2, which excludes the State except in certain property

disputes not relevant here). On these grounds, NJCRA claims would be
dismissed to the same extent as

§ 1983 claims. See B.D. v. Bd. of Educ. of the

Greater Egg Harbor Reg’l High Sch. Dist., 2015 WL 4508303, at *4 n.6 (D.N.J.

Individual defendants named in their personal, not official, capacities remain
amenable to suit under § 1983 as “persons,” and may assert personal defenses to
liability. Hafer, 502 U.S. at 25, 112 S. Ct. at 362; Estate of Lagano v. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 856 (3d Cir. 2014).
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July 24, 2015); Endi v. New Jersey, 5 F. Supp. 3d 689, 697 (D.N.J. 2014)
(definitions of “person” under

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§ 1983 and NJCRA are construed in parallel).

The complaint names the State, as well as a division of State
government, the Department of the Treasury. As to them, the issue is an easy
one. For purposes of

§ 1983 and the NJCRA, neither is a “person” amenable to

suit. See Graham, supra; Hafer, supra; Will, supra. On these grounds, Counts I
and VII must be dismissed as against the State.

IV.

UCPO’S MOTION TO DISMISS
UCPO asserts a number of grounds for dismissal of the claims.
To begin with, however, there is some ambiguity about whom the

plaintiff means to sue. The caption of the complaint names (a) Union
County Prosecutor and (b) the Union County Prosecutor’s Office. It is
possible that party (a) was intended to be Union County, not the Union
County Prosecutor. In the body of the complaint, Union County is
referred to, and the designation Union County Prosecutor is never used.
The initial listing of parties names “Defendant, Union County” as a
municipal corporation and the policymaker for the Union County
Prosecutor’s office. (Cplt., Parties

¶ 4) There is a stray reference to the
“prosecutor handling the case.” (Cplt., Introduction, ¶ 2)
On the other hand, UCPO took the caption at face value and have
understood the complaint to be directed to the Union County Prosecutor.
The Notice of Removal, for example, says as much. The motion to
dismiss, too, devotes considerable attention to prosecutorial immunity, a
personal defense. See generally Moncalvo v. City of Plainfield, No. 2:16CV-03513 (WJM), 2016 WL 6662694, at *3 (D.N.J. Nov. 10, 2016)
More generally speaking, the NJCRA was patterned on § 1983, and has been
construed in parallel. Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J.
2012); Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). See also
Gonzalez v. Auto Mall 46, Inc., 2012 WL 2505733, at *4 (N.J. Super. Ct. App. Div. July
2, 2012) (citing Rezem Family Assocs., LP v. Borough of Millstone, 30 A.3d 1061, 1067
(N.J. Super. Ct. App. Div. 2011), certf denied, 208 N.J. 366, 29 A.3d 739 (2011)).
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(discussing personal immunity of Union County Prosecutor in a removed
case)

.

A second fundamental flaw is that the Complaint simply contains
no facts concerning what the County, acting through individual
prosecutors, is alleged to have done. The complaint does not even state
specifically what the charges against Mr. Biaggi-Pacheco were, who filed
them, and in what form. Some minimal specificity, as required by the
federal rules, is needed. The problem is exacerbated by group pleading
against all defendants, jointly and severally. The plaintiff may be alleging,
for example, that UCPO filed unfounded charges; he may be alleging only
that UCPO negligently caused him to be held after charges were
dismissed.
Clarification of the plaintiff’s claims will bear on the applicability,
or not, of certain defenses. These include UCPO’s amenability to suit as a
“person” under 42 U.S.C.

§ 1983 and NJCRA, as well as sovereign

immunity. (These are discussed more fully herein in relation to the
State.) For example, the Union County Prosecutor (or Prosecutor’s Office)
is considered an arm of the State when performing classic law
enforcement functions, but not when performing administrative
functions of County government. See Fitzgerald v. Kother No. CV 15—
7773 (JMV), 2017 WL 66383, at *3 (D.N.J. Jan. 6, 2017) (citing Beightier
That assumption may have had a legal basis. A suit against the Union County
Prosecutor’s Office would raise a separate concern:
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[U]nder New Jersey law, a county prosecutor’s office.
has “no juridical
status apart from that of the County Prosecutor or the State,” McKinney
v. Prosecutor’s Office, No. 13-2553, 2014 WL 2574414, at *7 (D.N.J. June
4, 2014) (internal citations omitted) [citing Watkins v. Attorney Gen. of
New Jersey, No. CIV. 06-1391(JLL), 2006 WL 2864631, at *3 (D.N.J. Oct.
4, 2006)]...
Moncalvo v. City of Plainfleld, No. 2:16-CV-03513 (WJM), 2016 WL 6662694, at *2
(D.N.J. Nov. 10, 2016). It is often unimportant to rigidly observe the distinction
between the prosecutor and the office, but it may be necessary to do so here in order
to determine what defenses, or set of defenses, may apply.
.

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.

v. Office of Essex County Prosecutor, 342 F. App’x 829, 832 (3d Cir.
2009); Coleman u. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996)). As to the
relationships among the claims, the UCPO defendants, and the State
government, any discussion at this point would be speculative.
The motion to dismiss, then, is granted as to all counts as to the
UCPO defendants, for failure to plead with the specificity required by
Twombly and Iqbal, supra. The plaintiff filed his complaint in State court
under State pleading standards, and has made a very reasonable request
that he be granted leave to file an amended complaint in accordance with
federal standards.
Leave is granted to file an amended complaint within 30 days.
Unknown facts may be alleged on information and belief, if the plaintiff
states specifically the grounds for his belief and the reason the facts are
not within his control. But he must state such facts as he may possess.
In particular, the amended complaint must describe, in chronological
order, the events that occurred, the persons and entities involved, and
the particular acts they are individually alleged to have performed.
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V.

SOVEREIGN IMMUNITY AND MISCELLANEOUS MATTERS
The State and UCPO have also moved to dismiss the Complaint under

the Eleventh Amendment and doctrines of sovereign immunity. As to the State,
the federal law claims have been dismissed, so these grounds relate only to the
State law claims in Counts Il—VI. As to USPO, these grounds relate to such
claims as may be asserted in the anticipated amended complaint. For the
parties’ guidance in drafting or responding to such an amended complaint, I
will state the following.
First, the parties must, as always, state the basis for this Court’s subject
matter jurisdiction, or lack thereof.

The Court also requests, but does not require, that for ease of reference the
paragraphs of the amended complaint be numbered serially from beginning to end.
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Second, any motion to dismiss the amended complaint must discuss the
precise basis for any claim of sovereign immunity. It is true that the State has
waived its “forum immunity” by removing the case to federal court. It is also
true, however, that the State retains any and all defenses, including sovereign
immunity, that it might have asserted in a state-court suit. Port Auth. Trans
Hudson Corp. v. Feeney, 495 U.S. 299, 305--06, 110 5. Ct. 1868, 1873 (1990)
(citing Atascaclero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S. Ct. 3142
(1985)); Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 122 S.
Ct. 1640 (2002); Lombardo v. Commonwealth of Pennsylvania, 540 F.3d 190,
198 (3d Cir. 2008).
Should the State or UCPO defendants assert sovereign immunity, they
must do so specifically and state why the complaint would be dismissed on
sovereign immunity grounds if this action had remained in state court. In
particular, any motion to dismiss the amended complaint should state clearly
whether and to what extent such grounds relate to the state law claims. See
generally Moncalvo v. City of Plainfield, No. 2:16-CV-03513 (WJM), 2016 WL
6662694, at *2_*3 (D.N.J. Nov. 10, 2016) (discussing State Tort Claims Act
immunity in relation to removed case). Given that the complaint will be
amended in any event, the parties may take advantage of the opportunity to
clarify their briefs and present a sharply focused, contested issue to the Court.
Third, the plaintiff shall carefully identify the defendants being sued, and
shall name defendants which possess, under state law, the independent
capacity to be sued. See nn.2, 5, supra.

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ORDER
Accordingly, IT IS this 30th day of January, 2017,
ORDERED that the motion to dismiss (ECF no. 3) is GRANTED as to
Counts I and VII insofar as they are asserted against the State; GRANTED as to
all Counts insofar as they are asserted against UCPO; and otherwise DENIED.
The plaintiff is granted leave to file an amended complaint within 30
days.

N. KEVIN MCNULTY
United States District Judge

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