GOULD v. O'NEAL et al

Filing 30

OPINION. Signed by Judge John Michael Vazquez on 2/8/18. (sr, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JONATHAN GOULD,

Plain tiff
Civil Action No. 17-100
V.

OPINION
ROBERT O’NEAL, JOHN CAMPO, AND
ROBERT GRADY,

Defendants.

John Michael Vazguez, U.S.D.J.

This case arises from the arrest, detention, and commencement of a criminal prosecution
against Plaintiff for theft. Following the dismissal of the criminal charges, Plaintiff sued for
violations of his rights. The present matter comes before the Court on Defendants Robert
O’Neal, John Campo, and Robert Grady’s (collectively “Defendants”) motion to dismiss
Plaintiff Jonathan Gould’s Complaint. Defendants move to dismiss pursuant to Federal Rule of
Civil Procedure 1 2(b)( 1) for lack of subj ect-matter jurisdiction and pursuant to Rule 1 2(b)(6) for
failure to state a claim. D.E. 22. Plaintiff submitted a brief in opposition, D.E. 25, to which
Defendants replied. D.E. 26.1 The Court reviewed the submissions in support and in opposition,
and considered the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R.
78.1(b). For the reasons stated below, Defendants’ motion is GRANTED.

‘In this Opinion, Defendants’ motion to dismiss (D.E. 22) will be referred to as “Def. Brf.”
Plaintiffs brief in opposition (D.E. 25) will be referred to as “P1. Opp.” Defendant’s reply brief
(D.E. 26) will be referred to as “Def. Rep.”

I.

BACKGROUND
A. Factual Background

Plaintiff is a New York resident and the son of Dr. Carol Gould. Complaint (“Compl.”)

¶J 4,

17. Defendants are employees of the Essex County Prosecutor’s Office (“ECPO”) in Essex

County, New Jersey. Id.

¶ 2.

O’Neal is a detective, Campo is a sergeant, and Grady is an

assistant prosecutor (“AP”). Id.

¶J 18,

19, 20.

Beginning sometime in late 2014, the ECPO opened an investigation into Plaintiffs
alleged improper use of his mother’s credit card account. Id.

¶ 21.

On January 23, 2015,

Detective O’Neal sent Plaintiff a letter, which stated that the ECPO was investigating matter
“FC# 2014-17,” and asked Plaintiff to call him. Id.

¶ 22.

On February 4, 2015, Plaintiff and

Detective O’Neal spoke on the phone. Detective O’Neal asked Plaintiff to come to the financial
Crimes Unit of the ECPO, and Plaintiff agreed. Id.

¶ 23.

The two men spoke on the phone again

a few days later. Plaintiff asked Detective O’Neal for more information on the investigation.
Detective O’Neal said only that it involved Dr. Gould’s credit card account. Id.

¶ 24.

At that

point, Plaintiff said Detective O’Neal should speak with his mother, but Detective O’Neal
allegedly replied, “[w]e only talk to one person at a time.” Id.

¶ 25.

On February 11, 2015, AP Grady told Detective O’Neal that, after reviewing the case,
Grady had determined that Plaintiff should be charged with second degree theft. Id.

¶ 30.

Subsequently, on February 13, 2015, Plaintiff came to the ECPO, where he was met by Detective
O’Neal and Sergeant Campo. Id.

¶ 31-32.

After Plaintiff chose not to waive his Miranda rights,

Detective O’Neal and Sergeant Campo ended the meeting and served Plaintiff with a copy of a
“Complaint-Summons.” Id.

¶ 30.

The “Complaint-Summons” charged Plaintiff “with second

degree theft by unlawful taking (theft exceeding $75,000) in violation of N.J.S.A. 2C:20-3(a).”

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Id.

¶ 34. As noted, the theft allegations arose from Plaintiffs alleged misuse of Dr. Gould’s

credit card account from July 5, 2011 to April 5, 2014. Id.

¶ 36. Plaintiff claims to have been

innocent of the charges because he “was an authorized user on the account” and because “Dr.
Gould knew of and authorized [Plaintiffs] use of the account.” Id.

¶ 5.

On February 26, 2015, Plaintiff appeared in state court and pled not guilty. Id.

¶ 38.

The state court judge released Plaintiff on the conditions that “(a) he have no contact with Dr.
Gould, her relatives, or any witnesses; (b) he have no contact with the Daughters of Israel Home
where Dr. Gould lived in West Orange, New Jersey; (c) he sign a waiver of extradition from
New York; and (d) he surrender his passport within 24 hours.” Id.
ordered Plaintiff to appear again on March 30, 2015. Id.

¶ 39. Additionally, the judge

¶ 40. Following the arraignment,

Plaintiff “was taken to a locked inmate processing center where he was processed for arrest,
including the taking of fingerprints and mugshots.” Id. ¶41.
Afterwards, Plaintiffs defense counsel insisted that Detective O’Neal visit Dr. Gould to
discuss Plaintiffs use of funds from her credit card account. Detective O’Neal agreed to do so.
Id.

¶ 42. In the weeks after, sometime in February or March 2015, “Detective O’Neal and

another detective visited Dr. Gould, who made clear that [Plaintiff] had her full permission to use
the [credit card account], that [Plaintiff] was an authorized user of the account, and that she had
approved all of the charges that Defendants had alleged were ‘unlawfuL” Id.

¶ 43. Dr. Gould

also allegedly expressed that she was upset by the ECPO’s treatment of Plaintiff and their failure
to contact her before the arraignment. Id.

¶ 44.

Following this meeting, the detectives informed AP Grady of the conversation with Dr.
Gould. Id.

¶ 45. On March 30, 2015, the ECPO administratively terminated the criminal case

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against Plaintiff. Id.

¶ 46. Finally, on August 6, 2015, the Superior Court of New Jersey, Essex

County, entered a final expungernent order as to Plaintiff Id.

¶ 47.

B. Procedural History
On January 6, 2017, Plaintiff filed a Complaint against Defendants. D.E. 1. The
Complaint alleges claims of false arrest (Count One) and malicious prosecution (Count Two),
both in violation of 42 U.S.C.

§ 1983. Compi. ¶] 52-72. Thereafter, on July 31, 2017,

Defendants moved to dismiss the Complaint pursuant to federal Rule of Civil Procedure
(12)(b)(1) and Rule 12(b)(6). D.E. 22. Plaintiff submitted a brief in opposition to this motion,
D.E. 25, to which Defendants replied. D.E. 26.
II.

LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)

In deciding a Rule 12(b)(1) motion for lack of subject-matter jurisdiction, a court must
first determine whether the party presents a facial or factual attack because the distinction
determines how the pleading is reviewed.2 A facial attack “contests the sufficiency of the
complaint because of a defect on its face,” whereas a factual attack “asserts that the factual
underpinnings of the basis for jurisdiction fails to comport with the jurisdictional prerequisites.”
Gould Elecs. Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000), holding modified by Simon
v. United States, 341 F.3d 193 (3d Cir. 2003). For a factual attack, “the court may consider and
weigh evidence outside the pleadings to determine if it has jurisdiction.” Id. at 17$. The burden
is on the Plaintiff to prove the Court has jurisdiction. Id.

2

This Court also has an independent obligation to establish that it has subject-matter
jurisdiction. Morel v. INS, 144 F.3d 24$, 251 (3d Cir. 199$) (“[A federal] court. will raise
lack of subj ect-matter jurisdiction on its own motion.”) (quoting Ins. Corp. ofIreland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
.

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.

B. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough factual content “that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash croft
v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a
probability requirement, it does require a pleading to show more than a sheer possibility that a
defendant has acted unlawftilly.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir.
2016) (internal quotation marks and citations omitted). As a result, a plaintiff must “allege
sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his]
claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Ctv. ofAlleghenv, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevev, 481 f.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. Defazio v. Leading Edge Recove.’y Sols., 2010 WL
5146765, at *1 (D.N.J. Dec. 13, 2010).

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III.

LAW & ANALYSIS
Plaintiffs Complaint alleges two causes of action under 42 U.S.C.

§

1983. Compi.

¶ 52-

72. The First Count alleges a claim of false arrest in violation of Plaintiffs fourth and
Fourteenth Amendment rights against all Defendants. Id.

¶J 52-62.

The Second Count alleges a

claim of malicious prosecution in violation of Plaintiffs fourth and Fourteenth Amendment
rights against Defendants Detective O’Neal and Sergeant Campo. Id.

¶ 63-72.

Plaintiff seeks

compensatory and punitive damages as well as attorney’s fees and costs pursuant to these claims.
Id. ¶72.
Defendants argue that Plaintiffs Complaint should be dismissed on several grounds.
First, Defendants argue that this Court lacks subject-matter jurisdiction over this action under
Federal Rule 12(b)(1) because Defendants are entitled to sovereign immunity. Def. Brf at 5.
Second, Defendants argue that the Complaint should be dismissed under federal Rule 12(b)(6)
because AP Grady is entitled to absolute prosecutorial immunity, id. at 11-14, and Defendants
Sergeant Campo and Detective O’Neal are, in their official capacities, not persons under Section
1983 or, in their individual capacities, entitled to qualified immunity under Section 1983. Id. at
15-20.
A. State Sovereign Immunit and Section 1983 Official Capacity
Defendants first argue that Plaintiff failed to allege claims against Defendants in their
individual capacities and, instead, asserted claims against Defendants in their official capacities.
Def. Brf. at 7. Therefore, Defendants conclude that they are immune from suit under the
principle of state sovereign immunity. Id. Plaintiff responds that the claims are asserted against
Defendants in their individual capacities. P1. Opp. at 5.

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If Plaintiff was asserting claims against Defendants in their official capacities as state
officials, Defendants could likely assert sovereign immunity as a defense. The Eleventh
Amendment provides that “[t]he judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any foreign State.” U.S. Const. amend.
XI. Thus, the Eleventh Amendment protect states, as well as their agencies and departments,
from suit in federal court. Pennhurst State Sc/i. & Hosp. v. Hatderman, 465 U.S. 89, 100 (1984).
This protection also extends to state employees acting in their official capacities. See Will v.
Michigan Dept. ofState Police, 491 U.S. 58, 65 (1989). While Defendants are county
employees, their actions are, nevertheless, state action if undertaken “under the color of law.”
Leshko v. Sen’is, 423 F.3d 337, 339 (3d Cir. 2005); Galliano v. Borottgh ofSeaside Heights, WL
979850, at *7 (D.N.J. Mar. 30, 2007) (“The misuse of power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law is action
pursued under color of law within the meaning of 42 U.S.C.A.

§ 1983.”) (citations omitted).

Here, Defendants appear to qualify as state actors.
Claims under Section 1983 against state officials for damages implicate state sovereign
immunity because such officials are not “persons” within the meaning of the statute. Will, 491
U.S. at 65. The United States Supreme Court has reasoned that “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” and, thus, any recovery of damages would come from the state treasury. Id. at 71. It
follows, that any such recovery would be unconstitutional because Section 1983 does not
abrogate the Eleventh Amendment. Id. at 76.

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Plaintiff does not argue that Defendants should be considered county, rather than state,
employees for purposes of his suit. Instead, he explains that the Complaint asserts claims against
Defendants in their individual capacities. The Complaint, however, does not make the
distinction that Plaintiff now claims. As a result, the Court dismisses the Complaint without
prejudice, and Plaintiff may file an amended complaint that articulates he is suing Defendants in
their individual capacities.
B. Prosecutorial Immunity

Defendants next argue that the claim of false arrest against AP Grady should be
dismissed because, as a prosecutor, he is entitled to absolute immunity. Def. Brf. at 11.
Defendants point out that United States Supreme Court has long held that “in initiating a
prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for
damages under s[ection] 1983.” Imbler v. Fachtman, 424 U.S. 409, 431 (1976). Further,
Defendants argue that the Third Circuit has found that absolute prosecutorial immunity extends
beyond courtroom activity to out-of-court behavior “intimately associated with the judicial
phases of litigation.” Kutwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (internal
quotations omitted).
Plaintiff agrees that prosecutorial immunity applies to all advocacy actions undertaken by
a prosecutor. However, Plaintiff argues that the exception to the prosecutorial immunity for
investigative actions undertaken by a prosecutor applies here. Specifically, Plaintiff asserts that
where, as alleged here, a prosecutor advises police officers that probable cause exists for an
arrest, prosecutorial immunity does not apply. P1.

Opp. at 6.

See Burns v. Reed, 500 U.S. 478,

496 (1991) (declining to extend absolute prosecutorial immunity to a prosecutor’s giving of legal
advice to police officers).

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The Court finds that, pursuant to the allegations in the Complaint, absolute prosecutorial
immunity applies to the claim of false arrest against AP Grady. The factual allegations against
AP Grady in the Complaint are limited. The Complaint asserts that “[d]espite a lack of probable
cause, on or about February 11, 2015 Assistant Prosecutor Grady told Detective O’Neal that he
had reviewed the case and decided that [Plaintiff] should be charged with second degree theft.”
Compi.

¶ 30. In sum, Plaintiff alleges that AP Grady told Detective O’Neal that he (Grady) had

decided to charge Plaintiff with second degree theft. These alleged facts differ from those
present in Bttrns. In Burns the police officers detained Cathy Burns at the police station while
seeking the prosecutor’s advice on whether probable cause existed to arrest Ms. Burns. Burns,
500 U.S. at 483. The prosecutor, after listening only to the statements Ms. Bums had said to the
officers, told the officers that they likely had probable cause to arrest her. Id. Here, AP Grady

just told the officers the ECPO would initiate charges against Plaintiff. Initiating a prosecution is
not legal advice and falls squarely within the scope of absolute prosecutorial immunity.
Therefore, the false arrest claim is dismissed, without prejudice, against AP Grady.
C. Section 1983 Qualified Immunity

Finally, Defendants argue that Plaintiffs claims of false arrest and malicious prosecution
against Detective O’Neal and Sergeant Campo must be dismissed because they are entitled to
qualified immunity under Section 1983. To that end, Defendants argue that their arrest of

Defendants actually assert that “the Kim Branch is entitled to dismissal of all Section 1983 and
NJCRA claims, with prejudice, on the basis of qualified immunity.” Def. Brf. at 17 (emphases
added). Defendants also then go on to cite cases discussing NJCRA qualified immunity. Id.
The Court has no idea as to whom Kim Branch is, why Branch is relevant to this case, or why the
NJCRA is discussed when Plaintiff asserts his claims under only Section 1983 against only AP
Grady, Detective O’Neal, and Sergeant Campo.
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Plaintiff based on the infonriation possessed prior to the indictment was not a constitutional
violation and, further, not a violation of a clearly established right. Def. Brf. at 19.
Plaintiff counters that Defendants bear the burden of establishing their entitlement to the
defense of qualified immunity, Beers-Capitolv. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001),
and that they have not done so. Plaintiff argues the Complaint’s factual allegations illustrate that
Defendants lacked probable cause to arrest him. Further, Plaintiff asserts that arresting someone
without probable cause is a constitutional violation of a clearly established right. Losch v.
Borough ofFarkesburg, Pa., 736 F.2d 903, 907 (3d Cir. 1984) (“It is clear that the filing of
charges without probable cause and for reasons of personal animosity is actionable under
1983.”). P1.

§

Opp. at 7-8.

The Court recognizes that both the Third Circuit and United States Supreme Court have
found that questions of immunity should be resolved at the earliest possible litigation stage.
Miller v. Clinton Cty., 544 F.3d 542, 547 (3d Cir. 2008). Based on the current record, however,
the Court cannot determine that O’Neal and Campo are entitled to such immunity. 42 U.S.C.

§

1983, in relevant part, provides:
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[.]
.

.

Section 1983 does not provide substantive rights. Rather, it provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a
violation of a right secured by the Constitution or laws of the United States and, second, a

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plaintiff must contend that the violation was caused or committed by a person acting under color
of state law. West v.

Atkins,

487 U.S. 42,48(1988).

When a state officer’s actions give rise to a Section 1983 claim, qualified immunity can
shield the officer from liability. Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir.
2005). “The defendant has the burden of establishing qualified immunity.” Ihienfeld v. Darby
Borough Police Dep’t,No. 16-01990, 2017 WL 132169, at *6 (E.D. Pa. Jan. 13, 2017). The
United State Supreme Court has found the issue of qualified immunity turns on two questions:
(1) whether Plaintiffs alleged facts make out a violation of a constitutional right; and (2) if so,
whether the right at issue was clearly established at the time of defendant’s alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Thus, qualified immunity “can be overcome

when state officials violate ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. (quoting Harlow v. fitzgerald, 457 U.S. 800, 806
(1982)). As to whether a right is clearly established, the Supreme Court has ruled that the
“contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
At this stage, Defendants have not met their burden of showing that they did not violate a
clearly established constitutional right. The ECPO charged Defendant under N.J.S.A. 2C:203(a). N.J.S.A. 2C:20-3(a) provides that “[a] person is guilty of theft if he ttnkntJitlly takes, or
exercises unlawful control over, movable property of another with purpose to deprive him
thereof.” (Emphasis added).
Obviously, if Plaintiff was (as he alleges) an authorized user of his mother’s credit card
account and/or used the account with her pennission, he was not acting unlawfully. Based on the
plausibly pled allegations in the Complaint, O’Neal and Campo did not try to determine who, if

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anyone, was an authorized user of Dr. Gould’s credit card account. Defendants also did not
contact Dr. Gould to determine whether Plaintiff was using her account with her permission. It
would appear, as a practical starting point, that law enforcement would contact the alleged victim
to determine if, in fact, she is a victim.4 Defendants fail to even review the elements of a second
degree theft by unlawful taking in their briefing, much less conduct a factual analysis of probable
cause.
As pled in the Complaint, Defendants appear to have arrested Plaintiff without taking
the time and effort to first establish probable cause. Therefore, Defendants are not entitled to
qualified immunity under Section 1983. The Court will not dismiss the false arrest and
malicious prosecution claims against Detective O’Neal and Sergeant Campo.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss is GRANTED. The

Court grants Defendants’ motion to dismiss as to the claim of false arrest against AP Grady.
Thus, Count One is dismissed without prejudice as against AP Grady. The Court denies
Defendants’ motion to dismiss Count One and Count Two as against Detective O’Neal and
Sergeant Campo based on qualified immunity. However, the Court dismisses the Complaint
without prejudice as to all Defendants because the Complaint appears to charge all in their
official capacity. Plaintiff has thirty (30) days to file an amended complaint, if he so chooses,
consistent with this Opinion. If Plaintiff does not do so, this case will be dismissed with
prejudice. An appropriate Order accompanies this Opinion.
Dated: February 8,201$
John Michael Vazqu&2, tJ. .D.J.

At this stage, the Court is accepting the well-pleaded factual allegations as true. Defendants
may have sufficient information demonstrating that they acted with probable cause.
‘

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