BARRON et al v. STATE OF NEW JERSEY et al

Filing 23

OPINION. Signed by Judge William J. Martini on 1/8/18. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:17-735 (WJM)

JOSPEH BARRON, et al.,
Plaintiffs,

OPINION
v.
STATE OF NEW JERSEY, et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs Joseph Barron (“Barron”), Janine Watts (“Watts”), and Tammy GodfreyKhalil (“Godfrey-Khalil”) (collectively, “Plaintiffs”) bring this action, sounding in civil
rights and in tort, against the State of New Jersey, then-New Jersey State Police
Superintendent Rick Fuentes (“Fuentes”), Detective Stephen Reifler (“Reifler”), 12 other
police officers (“Officer Defendants”), the Essex County Prosecutor and Assistant
County Prosecutor Jennifer Fetterman (“ECPO Defendants,” and together with Fuentes,
Reifler, and the Officer Defendants, the “State Defendants”); Essex County; the
Township of Irvington, its then-Police Chief Michael Chase (“Chase”), and then-Police
Director Joseph Santiago (“Santiago”); and other unnamed individuals and entities. This
matter comes before the Court on the State Defendants’ Federal Rule of Civil Procedure
12(b)(6) motion to dismiss.1 No oral argument was held. FED. R. CIV. P. 78(b). For the
reasons below, the State Defendants’ motion to dismiss is GRANTED in part and
DENIED in part.
I.

BACKGROUND
A. Investigation and Arrest of Plaintiffs

The State Defendants, Township of Irvington, and Essex County (the “Public Entity
Defendants”) planned an operation as to suspected drug-dealing activities in apartment
2F at 525 Chancellor Avenue, Irvington, New Jersey. Compl. ¶ 46, ECF No. 1.2 The
Public Entity Defendants used a confidential informant to buy drugs from “Dawn,” who
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The remaining Defendants—Essex County, Township of Irvington, Chase, and Santiago—do not join in the
motion.
2
Plaintiffs’ Amended Complaint, which at times is unclear as to which Defendants are on notice to the allegations,
has multiple errors with the page and paragraph numbers. It contains conflicting statements about claims being
dismissed yet still references the dismissed matters. To provide clarity, when needed to keep the sequence of events
in order, the Court will cite to the original Complaint. See ECF No. 1.

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was the target of the investigation. Id. ¶ 47. Dawn lived in apartment 2FL (“2FL”), next
door to Plaintiff Barron’s apartment at 2FR (“2FR”). Id. ¶ 48.
During the investigation, Reifler obtained a search warrant on affidavit for Dawn’s
residence (2FL). Id. ¶ 49. Over a week later, the Officer Defendants held a briefing on the
proposed sting operation. Id. ¶ 50. Fuentes, Township of Irvington law enforcement
officers, including Chase and Santiago, Essex County employees, and the ECPO
Defendants were either present or had knowledge of the operation and otherwise helped
plan it. Id. ¶¶ 51–52. After the briefing, the Officer and Public Entity Defendants set up
surveillance on 2FL, during which time someone saw “a black male wearing glasses and
a black female with blondish hair” through a back rear window blind. Pls.’ Opp’n, Ex. A
¶ 53, ECF No. 19–18 (“Am. Compl.”). The Officer and Public Entity Defendants then
forcibly entered 2FL and found drugs, but located no individuals, including Dawn. Id. ¶
54.
Upon leaving 2FL, the same Defendants went to 2FR—where Plaintiffs were—and,
without probable cause, requested and obtained consent to search that apartment. Id. ¶¶
55–56. Once inside, the Defendants saw drugs which led to Plaintiffs’ arrest and
incarceration. Compl. ¶ 58. Plaintiffs claim the Officer Defendants and Public Entity
Defendants planted the drugs as a pretext for arrest. Id. ¶¶ 57–58; Am. Compl. ¶ 29.
After Plaintiffs’ arrest, Assistant Prosecutor Fetterman elicited grand jury testimony
from Reifler that she knew or should have known was false. Am. Compl. ¶ 68. Reifler
testified that Godfrey-Khalil was Dawn—although he never met or saw her, id. ¶ 69; that
he spoke with the landlord of 2FL and 2FR who only speaks Portuguese, id. ¶ 70; that the
landlord was unable to pick Dawn out of a photo lineup that included Godfrey-Khalil—
having only the characteristics of being African-American females in common, id. ¶¶ 70–
71; and that Barron leased and paid utilities on both apartments. Id. ¶¶ 72–73. He also
testified about seeing Godfrey-Khalil and another person from 2FL’s window, but the
police report is devoid of that observation. Id. ¶ 74. Finally, Reifler gave false testimony
because Godfrey-Khalil and another individual were African-American. Id. As a result of
the arrests, Barron was incarcerated for four months, Godfrey-Khalil for six months, and
Watts for two and a half weeks. Id. ¶¶ 75–77. Assistant Prosecutor Fetterman then
dismissed all charges against Plaintiffs. Id. ¶ 78.
B. The Action Here
By consent, the parties agreed to dismiss certain claims. So the Court will address the
remaining issues, those being violations of Plaintiffs’ civil rights for false arrest,
wrongful incarceration, racial profiling, and conspiracy under 42 U.S.C. §§ 1983, 1981,
and 1985 (Count I) and the New Jersey Civil Rights Act (“NJCRA”), N.J. STAT. ANN. §
10:6–2, et seq. (Count II) and a state law malicious prosecution claim (Count V).
II.

LEGAL STANDARD

Rule 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
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744, 750 (3d Cir. 2005). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. 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) (citation and quotation marks
omitted). The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678 (citation omitted). Thus, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotation marks and citation omitted).
III.

DISCUSSION

Under 42 U.S.C. § 1983, a defendant, acting under color of law, may be sued for
deprivation of alleged constitutional or statutory rights. Miller v. Mitchell, 598 F.3d 139,
147 (3d Cir. 2010) (citation omitted); Hafer v. Melo, 502 U.S. 21, 31 (1991) (“[S]tate
officers [are not] absolutely immune from personal liability under § 1983 solely by virtue
of the ‘official’ nature of their acts.”). Although subject to suit for official acts, state
actors may assert absolute and qualified immunity defenses.
A. Claims Against the Essex County Prosecutor - Absolute Immunity
Absolute immunity protects prosecutors from suit for actions taken during the course
of “initiating and conducting prosecutions” such presenting evidence in probable cause
hearing. Burns v. Reed, 500 U.S. 478, 485 (1991) (citing Imbler v. Pachtman, 424 U.S.
409, 427–28 (1976)). Only those acts “intimately associated with the judicial phase of the
criminal process” are immune from civil suit. Burns, 500 U.S. at 492. Of course, the
scope of absolute immunity has limits. It does not apply to a prosecutor for “investigative
functions normally performed by a detective or police officer.” Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993). Nor does absolute immunity apply to a prosecutor’s legal
advice to police about the existence of probable cause for arrest. Burns, 500 U.S. at 493.
Plaintiffs’ arguments that during the investigation the Essex County Prosecutor knew
they were not guilty, was aware of exculpatory evidence, and that he possessed
knowledge that the “star witness” gave false testimony represents unadorned conclusions
that fail to rise above a speculative level. See Am. Compl. ¶ 80. The Essex County
Prosecutor enjoys absolute immunity for prosecutorial decisions and there lacks evidence
showing “personal involvement” in the investigation that led to Plaintiffs’ arrest and
incarceration. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Thus, with
immunity from suit and no non-prosecutorial misconduct alleged, the claims against the
Essex County Prosecutor are DISMISSED WITH PREJUDICE.
B. Claims Against Assistant Prosecutor Fetterman - Qualified Immunity
Qualified immunity shields Assistant Prosecutor Fetterman’s actions, including
evaluating the evidence, eliciting testimony from Reifler, and advising police to obtain a
search warrant, from suit. “The doctrine of qualified immunity protects government
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officials from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal quotation marks
and citation omitted). “A Government official’s conduct violates clearly established law
when, at the time of the challenged conduct, the contours of a right are sufficiently clear
that every reasonable official would have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks, citation,
and brackets omitted). In all, qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Plaintiffs allege Assistant Prosecutor Fetterman violated their First, Fourth, and
Fourteenth Amendment rights when she failed to both become involved in the
investigatory phase and corroborate the false information “Reifler and/or others”
provided her, which facilitated racial profiling. Am. Compl. ¶ 96. But Plaintiffs’
allegations that Assistant Prosecutor Fetterman charged them based on Reifler’s sworn
testimony can serve as a sufficient basis for probable cause. See Scott v. Farrell, 2013
WL 6474488, at *3 (E.D. Pa. Dec. 10, 2013) (citing cases). Further, there is no clearly
established right for a prosecutor or investigator “to undertake an exhaustive
investigation in order to validate the probable cause that, in his mind, already existed.”
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 n.8 (3d Cir. 2000) (citation
omitted). With the facts available to Assistant Prosecutor Fetterman at the time she made
the decision, it is unclear whether her conduct was knowingly unlawful. See Saucier v.
Katz, 533 U.S. 194, 202 (2001). Thus, like the Essex County Prosecutor, the claims
against Assistant Prosecutor Fetterman are DISMISSED WITH PREJUDICE.
C. Section 1983 Claims Against Reifler and the Officer Defendants
In clarifying its position, Plaintiffs contend Reifler, the Officer Defendants, and
Public Entity Defendants arrested them absent probable cause and that Reifler provided
false statements that enabled the investigation, arrest, prosecution, and incarceration.
“Under § 1983, false arrest, false imprisonment, and malicious prosecution claims
require a showing that the arrest, physical restraint, or prosecution was initiated without
probable cause.” Pulice v. Enciso, 39 F. App’x 692, 696 (3d Cir. 2002). A Fourth
Amendment-based malicious prosecution claim requires evidence: (1) the defendants
initiated a criminal proceeding; (2) the proceeding ended in plaintiff’s favor; (3) the
proceeding was initiated without probable cause; (4) the defendants acted maliciously or
for a purpose other than to bring the plaintiff to justice; and (5) because of the
proceeding, the plaintiff suffered a deprivation of liberty. Kossler v. Crisanti, 564 F.3d
181, 186 (3d Cir. 2009) (en banc) (quotation marks and citation omitted). Except for the
fifth element, the state malicious prosecution claim mirrors the federal standard. See
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1197 (3d Cir. 1993) (citation omitted)).
As to evaluating qualified immunity, the Court recognizes the clearly established “right
to be free from arrest except on probable cause.” See Orsatti v. New Jersey State Police,
71 F.3d 480, 483 (3d Cir. 1995). And also the “right to be free from criminal prosecution
except upon probable cause.” Donahue v. Gavin, 280 F.3d 371, 379 (3d Cir. 2002).
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Although Plaintiffs allege Defendants lacked probable cause for arrest, apart from
identifying Reifler’s conduct in making false statements to the grand jury, the allegations
lack particularity as to each individual Defendant’s role. Plaintiffs must assert plausibly
why there lacked probable cause for arrest and how each individual Defendant acted
maliciously or for a purpose other than to bring Plaintiffs to justice. Thus, as to the
Officer Defendants, the Court will DISMISS WITHOUT PREJUDICE the false arrest,
wrongful incarceration, and malicious prosecution claims. These claims will remain
against Reifler because if he did testify falsely and concoct facts to establish probable
cause for Plaintiffs’ arrest that led to their indictment, he cannot then claim qualified
immunity. See Burt v. Ferrese, 871 F.2d 14, 16 (3d Cir. 1989).
As to the Fourteenth Amendment racial profiling claim, Plaintiffs have failed to state
a claim. The amended allegations are replete with conclusory statements that Defendants
acted a certain way because Plaintiffs were African-American and had a penchant for
criminality. The allegation against Reifler claims he wrongly identified Godfrey-Khalil as
“Dawn” because both happened to be African American women. Am. Compl. ¶¶ 33, 69,
71. Such statements fail to satisfy the post-Iqbal pleading standards. Thus, the Court will
DISMISS the Section 1983 racial profiling claim WITHOUT PREJUDICE.
D. Section 1983 Claims Against Fuentes (Supervisory Official Liability)
Plaintiffs failed to allege with requisite specificity how Superintendent Fuentes had
personal involvement in the operation that led to their unlawful arrests and incarceration.
Nor do Plaintiffs allege how Fuentes fostered a policy or custom that caused their
injuries. Merely alleging that he failed to take action and adopt policies to address officer
misconduct is not enough. Id. ¶ 79. Such conclusory statements fail to show that Fuentes
directly participated in, or had knowledge of and acquiesced to, his subordinates’
conduct. See Rode, 845 F.2d at 1207. Thus, Plaintiffs’ claims against Fuentes fall short
and are DISMISSED WITHOUT PREJUDICE.
E. Section 1985 Conspiracy Claim Against Fuentes, Reifler, and Officer
Defendants
To state Section 1985(3) claim, Plaintiff must allege: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person
or property or deprived of any right or privilege of a citizen of the United States. Farber
v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (citation omitted).
At bottom, Plaintiffs have failed to plead a viable conspiracy claim. As to the ECPO
Defendants, with deficient underlying Section 1983 claims, the Section 1985(3) claims
are DISMISSED WITH PREJUDICE. As to Fuentes and the Officer Defendants, in
failing to properly allege the supporting Section 1983 claim, Plaintiffs’ Section 1985(3)
claims against them also fail and are DISMISSED WITHOUT PREJUDICE. As to
Reifler, since it takes at least two persons to form a conspiracy, the Section 1985(3)
conspiracy claim is DISMISSED WITHOUT PREJUDICE.
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F. NJCRA and Section 1981 Claims Against the State Defendants
The NJCRA is essentially the New Jersey State law analogue to Section 1983 and it
“was not intended to create any new substantive rights.” See Perez v. Zagami, LLC, 94
A.3d 869, 875, 877 (N.J. 2014). “Courts in this district have generally interpreted the
NJCRA to be coextensive with its federal counterpart.” Docherty v. Cap May Cnty., 2017
WL 2819963, at *12 (D.N.J. June 29, 2017) (citing Gormley v. Wood-El, 218 N.J. 72, 97
(2014)). Thus, the Court DISMISSES the NJCRA claims against the State Defendants
WITH PREJUDICE.
Next, Plaintiffs put forth a Section 1981 race discrimination claim, but that too fails
because precedent shows “no implied private right of action exists against state actors
under 42 U.S.C. § 1981.” McGovern v. City of Philadelphia, 554 F.3d 114, 122 (3d Cir.
2009). If appropriate, a plaintiff may bring a Section 1981 race discrimination claim
against a state actor under 42 U.S.C. § 1983. Thus, the Court will DISMISS the Section
1981 claims against the State Defendants WITH PREJUDICE.
IV.

CONCLUSION

Upon the State Defendants and Plaintiffs’ consent, Counts III, IV, and VI; the claims
against Fuentes, Reifler, and the Officer Defendants in their official capacities only; and
all claims against the State of New Jersey as a separate entity are DISMISSED WITH
PREJUDICE.
The State Defendants’ motion to dismiss is GRANTED in part in that the NJCRA
and Section 1981 claims against the State Defendants are DISMISSED WITH
PREJUDICE. The Section 1983 and 1985 claims against the ECPO Defendants are also
DISMISSED WITH PREJUDICE. As to Fuentes and the Officer Defendants, the
Section 1983, 1985, and state malicious prosecution claims are DISMISSED
WITHOUT PREJUDICE. As to Reifler, the motion to dismiss is GRANTED in part in
that the Section 1983 racial discrimination and Section 1985 conspiracy claims are
DISMISSED WITHOUT PREJUDICE, but it is DENIED in part as to dismissing the
remaining Section 1983 and state malicious prosecution claims. An appropriate order
follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: January 8, 2018

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