CRESCI v. GYESS
Filing
30
OPINION. Signed by Judge Kevin McNulty on 10/15/2018. (sm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PETER J. CRESCI,
Civ. No. 17-2342 (KM)
Plaintiff,
OPINION
V.
SUSAN GYESS (aka SUSAN GYESS
GREGORY),
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Peter J. Cresci, an attorney,’ brings this action against Susan Gyss2
based upon her actions as municipal prosecutor for the City of Bayonne in
2014. The operative pleading, the Amended Complaint (“AC”, DE 14), asserts
federal 1983 claims of selective and malicious prosecution; excessive force
§
under the Fourth Amendment; false imprisonment; abuse of process; First
Amendment retaliation; and conspiracy. It also asserts state-law tort claims of
According to njcourts.gov, Cresci is suspended from practice before the New
Jersey state courts. He is suspended from practice before this federal court as well. In
this action, however, he appears as plaintiff pro se, as he remains entitled to do.
Because of his legal training, I do not afford his complaint the liberal reading due the
pleadings of an ordinary pro se litigant. See Kenny v. United States, No. CIV 08—3921
GEB, 2009 WL 276511, at *8 (D.N.J. Feb. 5,2009) (Brown, C.J.) (“[Tjhis prose
Plaintiff is an attorney, and therefore, has substantial legal training and professional
experience, undermining the rationale set forth by the Supreme Court in Haines v.
Kemer, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).”) (citing Allen v. Aytch,
535 F.2d 817, 821 n. 21 (3d Cir. 1976) (stating that a third year law student who
drafted a complaint had “substantial legal training” and therefore declining to
construe the complaint liberally)).
I
In her papers, the defendant states that her name is properly spelled “Gyss”
and that she is not also known as “Gregory,” When referring to her in this Opinion, I
will use the name “Susan Gyss.”
2
1
tortious interference with prospective economic advantage and with contract,
and for a declaratory judgment that Gyss was ineligible to serve as prosecutor.
Gyss has filed a comprehensive Rule l2(b)(6) motion to dismiss the
Amended Complaint for failure to state a claim. It cites such fundamental
grounds as prosecutorial immunity. Because Cresci’s response simply fails to
address many of those grounds, I have discussed them only briefly. For the
reasons stated herein, the motion to dismiss the Amended Complaint is
granted, with prejudice.
I.
Background
The allegations of the Amended Complaint are assumed to be true for
purposes of this motion to dismiss. The complaint scrambles the chronology,
omits key dates, and inexcusably omits key facts about the state-court
proceedings on which it is based. It contains nonspecific, collateral objections
to the New Jersey Intergovernmental Insurance Fund providing liability
coverage to Gyss, the conspiratorial bringing of unspecified claims,
undescribed press releases, and so forth. I concentrate here on the allegations
that seem most pertinent to the
§ 1983 causes of action.
Cresci was charged in municipal court via a criminal complaintsummons, No. S2014-060. The charge was harassment under N.J. Stat. Ann.
§ 2C:33-4(a), a disorderly persons offense. (AC ¶ 6) The complaining witness
seems to have been Adeline Gonzales, who was Mr. Cresci’s tenant under a
lease. (See AC
¶ 59) The genesis of the harassment complaint was “a landlord-
tenant issue, in which the tenant was provided 90 plus days to vacate one of
¶ 6) Gonzales “denied the harassment complaint.
was anything more than a landlord-tenant issue.”4 (AC ¶ 6) “Subsequently, the
Plaintiff’s properties.” (AC
The Amended Complaint does not allege that Cresci was arrested; in addition, it
alleges that the municipal court complaint had a docket number prefix of “S,” implying
a complaint-summons. (AC ¶ 6) That this was a citizen complaint is corroborated by
the procedures alleged to have been followed. (See n.6, infra.)
3
The meaning is obscure. It does not seem to be an allegation that Gonzales
recanted or abandoned her claims voluntarily. (See AC ¶ 16 (alleging that Gonzales
filed an ethical complaint against the presiding Chief Judge of the municipal court))
4
2
Municipal Court Administrator denied probable cause, and Presiding Municipal
Court Judge [identified as Frank Carpenter] denied probable cause.” (AC ¶ 6)
Gyss, it is alleged, appealed from that denial. In doing so, she
“bypassed the normal process and appealed the probable cause determination
to her Husband’s Office.” (AC
¶
7) Gyss was allegedly married to the then-
Acting Hudson County Prosecutor, Gaetano Oregon’. She “filed the appeal to
her husband, Gaetano Gregory, at the Hudson County Prosecutor’s Office
without the knowledge of Presiding Municipal Court Judge Frank
Carpenter.
.
.
.
the very Judge who denied probable cause on this Landlord-
Tenant issue.” (AC
¶
16) Such an appeal does not comply with applicable
procedures in the Rules of Court, N.J. Ct. R. 7:13-1 and R. 3:24(c).6
Apparently the charges remained in place or were reinstated; the
Amended Complaint does not indicate clearly what happened. Gyss was “able
to get” the appeal before “Superior Court Judge dePascale, a former co-worker
of Defendant [Gyss]” (AC
determination.” (AC
¶
¶
17) in order “to confirm the probable cause
12).
“After several required appearances in court, the case was moved to [the]
Town of Kearny. On April 7, 2015 Plaintiff was notified that a dismissal of the
charges was made by Judge McKeon.” (AC
¶
10; see also AC
¶
14)
The Amended Complaint at numerous points alleges that “Defendant
[Gyss] was violating the law by practicing criminal law within the county in
which her husband was the county prosecutor.” (AC ¶ 15; see also ¶] 9, 28) It
The practice in New Jersey municipal court is that, where the complainant is
not a law enforcement officer but an ordinary citizen, a complaint-warrant or
complaint-summons “may be issued only by ajudge, or, if authorized by the judge, by
a municipal court administrator or deputy court administrator of a court with
It must be accompanied by a finding of probable
jurisdiction in the municipality
cause by such “judicial officer.” If a court administrator or deputy court administrator
finds that no probable cause exists, “that finding shall be reviewed by the judge,” who,
if he or she concurs, shall dismiss the complaint. N.J. Ct. R. 7:2-2(a)(1).
5
In AC ¶ 16, this material is alleged directly. Elsewhere in the Amended
Complaint, however, a similar allegation is made “on information and belief.” (AC
6
3
¶
12)
further alleges that Cresci, as an attorney, had a history of suing the City and
participating in investigations involving associates of Gyss. (AC
¶
47)
The Amended Complaint asserts nine lettered causes of action:
A.
Malicious and selective prosecution without probable cause
B. Excessive force
(
1983)
1983)
C. Unlawful detention
U. Abuse of process
(
(
(
1983)
1983)
E. First Amendment retaliation
(
1983)7
F. Conspiracy to violate civil rights
G. Unlawful interference with prospective economic advantage
H. Tortious interference with contract
J. 8Declaratory judgment that “pursuant to statute” Gyss was
improperly practicing criminal law in the same county in which her
husband was acting prosecutor.
II.
The Applicable Standard
Rule 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 facts
alleged in the complaint are accepted as true and all reasonable inferences are
drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v.
Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014). “[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 AtI. Corp. u. TLuombly, 550 U.s.
544, 555 (2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level, so that a claim is
“plausible on its face.” Id. at 570; see also West Run Student Hous. Assocs., LLC
a Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facialAlthough the title of this Count additionally cites 42 U.S.C. § 2000e, that is not
the gist of the allegations. I treat this as a First Amendment retaliation claim. See
Point IV.A.4, infra.
8
There is no Claim I.
4
pinusibility standard is met “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 “[tjhe plausibility standard is not akin to a
‘probability requirement’.
.
it asks for more than a sheer possibility.” Iqbal,
556 U.S. at 678.
UI.
Prosecutoflal Immunity (Claims A, B, C, 13, E & F)
Before considering arguments directed to particular causes of action in
the Amended Complaint, I address Gyss’s overall assertion of prosecutorial
immunity with respect to the federal Constitutional claims.
“Prosecutorial immunity is ‘more than a mere defense to liability.’ Odd
Malone, 538 F.3d 202, 207 (3d Cir. 2008). Rather, it is an entitlement not to
i-c
stand trial and serves as a complete bar to suit. Mitchell v. Forsyth, 472 U.S.
511, 512 (1985).” Mujaddid v. Wehling, No. CV 12-7750, 2016 WL 310742, at
*6 (D.N.J. Jan. 25, 2016) (Simandle, C.J.), affd, 663 F. App’x 115 (3d Cir.
2016). “[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under [ J 1983”. Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). “[A]cts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial, and which occur
in the course of [her] role as an advocate for the State, are entitled to the
protections of absolute immunity.” Buckley v. Fitzsimmons, sog U.S. 259, 273.
*4...5
Accord Williams v. Rivera, No. CIV. A. 05-445 1, 2006 WL 469949, at
(D.N.J. Feb. 27, 2006) (Greenaway, J,).
A prosecutor’s appearance in court as an advocate in support of an
application for a search warrant and the presentation of evidence
at such a hearing are protected by absolute immunity. Likewise,
prosecutors are absolutely immune from liability when appearing
before grand juries to present evidence. Bums v. Reed, 500 U.S.
478, 492 (1991). “[A}cts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which
occur in the course of [her] role as an advocate for the State, are
5
entitled to the protections of absolute immunity.” Buckley u.
Fitzsimmons, 509 U.S. 259, 273 (1993).
“Absolute” immunity, despite the terminology, is not unlimited in scope.
It applies where the prosecutor is acting qua prosecutor, but not otherwise:
A prosecutor is not entitled to absolute immunity, however, for
actions undertaken in some other function. See Kalina v. Fletcher,
522 U.S. 118, 129—31, 118 S. Ct. 502, 139 L.Ed.2d 471 (1997)
(holding that prosecutor is not protected by qualified immunity for
attesting to the truth of facts contained in certification in support
of arrest warrant, as in her provision of such testimony she
functioned as a complaining witness rather than a prosecutorial
advocate for the state); Bums v. Reed, 500 U.S. 478, 492—96, 111
S. Ct. 1934, 114 L.Ed.2d 547 (1991) (the provision of legal advice
to police during pretrial investigation is not protected by qualified
immunity); Buckley, 509 U.S. at 276—78 (prosecutor is not acting
as an advocate, and is not entitled to absolute immunity, when
holding a press conference or fabricating evidence); see also Yarns
u. County of DeL, 465 F.3d 129 (3d Cir. 2006) (analyzing when a
prosecuting attorney is, and is not, entitled to absolute immunity
for allegedly wrongful acts in connection with a prosecution and
holding, for example, that a prosecutor is not entitled to absolute
immunity for deliberately destroying highly exculpatory evidence,
but is entitled to immunity for deciding to deliberately withhold
exculpatory evidence before and during trial).
*6 (D.N.J. May
Delbridge v. Whitaker, Civ. No. 09-4227, 2010 WL 1904456, at
10, 2010) (Wigenton, J.).
n
The applicability of immunity depends on the nature of the functio
in
being performed—ic., whether the prosecutor is acting as a prosecutor
ed
pursuing and disposing of charges—not on whether that function is perform
properly:
The availability of absolute prosecutorial immunity against an
action under § 1983 depends on “the functional nature of the
activities rather than the respondent’s status” as a prosecutor.
Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Immunity attaches
when a prosecutor engages “with the judicial phase of the criminal
process,” but not when she is involved in “certain investigative
activities” before a criminal action is initiated and presented to a
6
court. Id. at 430. A prosecutor enjoys immunity from suit even
where she has engaged in “malicious or dishonest action,” so long
as she was acting as the states advocate at the time. Id. at 427;
see also Odd, 538 F.3d at 208.
Mujaddid v. Wehling, 2016 WL 310742 at *6.
Thus, a prosecutor is absolutely immune when making a decision to
prosecute, “even where [she] acts without a good faith belief that a wrongdoing
has occurred.” Kulwicki v. Dawson, 969 F.2d 1454, 1463—64 (3d Cir. 1992);
Rose v. Bartle, 871 F.2d 331, 343 (3d Cir. 1989). In this regard, a falsely
l
charged defendant may be “remedied by safeguards built into the judicia
system,” such as dismissal of the charges. Kulwicki, 969 F.2d at 1464.
Prosecutors also are absolutely immune from a civil suit for
damages under § 1983 for: (1) instituting grand jury proceedings
without proper investigation and without a good faith belief that
any wrongdoing occurred, [citing Schrob v. Catterson, 948 F.2d
1402, 1411 (3d Cir. 1991)]; Rose v. Bartle, supra; (2) initiating a
prosecution without a good faith belief that any wrongdoing has
occurred, Kulwicki, 969 F.2d at 1463—64; (3) soliciting false
testimony from witnesses in grand jury proceedings, probable
cause hearings, and trials, Bums, 500 U.S. at 490; Kulwicki, 969
F.2d at 1467; and (4) the knowing use of perjured testimony in a
judicial proceeding, Imbler, 424 U.S. at 424—27; Schrob, 948 F.2d
at 1417; Brawerv. Horowitz, 535 F.2d 830 (3d Cir.1976).
Williams, 2006 WL 469949, at 5.
The question, then, is whether Cresci’s claims are based on Gyss’s
criminal
performance of her prosecutorial function of bringing and pursuing
that Gyss
charges. At the heart of Claims A, B, C, D, ED, and F are allegations
with
brought and pursued harassment charges without probable cause and
pal court
retaliatory motives. Following an alleged decision by the chief munici
office of the Acting
judge that probable cause was lacking, Gyss appealed to the
who had
County Prosecutor (her husband), and the Superior Court (a judge
In any
once been a colleague). This appeal is alleged in the vaguest terms.
n of
event, however, such appeal efforts are within the prosecutorial functio
although
pursuing charges. For whatever reason, the charges were lodged,
7
venue was moved to Kearny. (At this point, no further involvement of Gyss
appears to be alleged.). It was in Kearny that they were dismissed.
on
These are prosecutorial functions, intimately bound up with the litigati
of criminal charges. True, the complaint states that those functions were
le
performed in a wrongful rnanner—Gyss, it is alleged, did not possess probab
e of
cause, acted out of bad motives, had a disabling conflict of interest becaus
7:13-1
her husband’s position, or did not comply with State rules, N.J. Ct. 1?.
and R. 3:24(c), governing procedures on appeal. But it is the prosecutorial
gives rise
function, not the rightful or wrongful exercise of that function, which
of
to immunity. Prosecutodal immunity attaches to even knowing presentation
lesser
perjured testimony or pursuit of unfounded charges; surely these
conflicts of interest or procedural infirmities would be covered as well.
ipal
With respect to municipal prosecutors—indeed, the Bayonne munic
prosecutor in particular—this Court has applied absolute prosecutorial
and related
immunity to dismiss constitutional claims of malicious prosecution
prosecutors
causes of action. Mujaddid v. Wehling, supra (Vineland municipal
er, supra
immune from claim of malicious prosecution); Delbridge v. Whitak
from her
(Bayonne municipal prosecutor immune from suit for claims arising
Rivera, supra
acts in initiating or pursuing a criminal prosecution); Williams v.
malicious
(Bayonne municipal prosecutor immune from § 1983 claims of
200, 202
prosecution, retaliation, etc.). See also Fluffy v. Freed, 452 F. App’x
prosecution
(3d Cir. 2011) (affirming dismissal of ADA claim of retaliatory
prosecutor
brought by attorney against Galloway municipal prosecutor, finding
ticket case on the
immune from suit based on his refusal to dispose of speeding
Inc., 255 N.J.
basis of a “standard” plea deal); Fleming v. United Parcel Sew.,
ipal
Super. 108, 167—68, 604 A.2d 657, 686—87 (Law Div. 1992) (munic
law claims of
prosecutor of Saddle Brook is immune from federal and state
8
malicious prosecution, abuse of process, slander, etc.), affd, 273 N.J. Super.
526, 642 A.2d 1029 (App. Div. 1994).
Three of the Constitutional claims, although apparently barred by
prosecutorial immunity, are phrased so unclearly as to merit further
discussion. Counts B and C (excessive force and unlawful detention), as
commonly understood, would not necessarily implicate the prosecutorial
function. Indeed, those causes of action are ordinarily not asserted against a
prosecutor at all, but against the police in connection with a defendant’s arrest
and detention prior to the bringing of criminal charges. Here, however, Cresci
seems to assert that the mere pendency of charges or the requirement that he
make routine court appearances constituted excessive force or unlawful
Cresci, in his opposing brief, makes no relevant response.
In Point I he argues that Gyss is not entitled to “sovereign immunity,” which
may be true but is irrelevant to any point asserted in the motion to dismiss. (P1. Brf. 7)
The discussion then veers to respondeat superior, also irrelevant because the Amended
Complaint asserts claims against Gyss based on her own acts.
Also in Point I, Cresci argues that a reasonable person in Gyss’s position would
have understood that her acts were unlawful, but that she “apparently cannot read
[N.J. Ct.] R. 7:13-1 and R. 3:24(c) and 2C:33-4(a) which does not allow an appeal
without proper approval from the Municipal Court, its Presiding Judge Frank
Carpenter, and Plaintiff Cresci.” (Id.) This contention may be intended to link to Point
IV, in which Cresci argues that Gyss “does not have qualified immunity for the false
prosecution, false detainer, and failure to adhere to R. 7:13-1, R. 3:24(c).” (P1. Brf. 11)
The doctrine of qualified immunity protects government 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.” Pearson u.
Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).) Qualified immunity, however, is not asserted here. It is a completely separate
doctrine from absolute prosecutorial immunity.
In Point II, Cresci argues that Gyss in her personal capacity is a “person” for
purposes of 1983 and that an action against her is not barred by the Eleventh
Amendment. See, e.g., Will v. Michigan Dept of State Police, 491 U.S. ss, 67—71 (1989).
True enough, but this is concededly an action seeking damages against Gyss
personally, and she does not argue othenvise.
9
detention. So understood, Claims B and C would implicate the care
prosecutorial functions of bringing and pursuing criminal charges.
Claim D (abuse of process) is opaque. Paragraph 16 of the facts section,
however, perhaps clarifies what is meant:
Defendant Gyess was so intent of abusing process
16.
that she filed the appeal to her husband, Gaetano Gregory, at the
Hudson County Prosecutor’s Office without the knowledge of
Presiding Municipal Court Judge Frank Carpenter. Judge
Carpenter is the very Judge who denied probable cause on this
Landlord-Tenant issue. Further, tenant Harris was guided by
Defendant Gyess to file a judicial complaint in Trenton against
Frank Carpenter, for which the judge had to respond and address
Defendant Gyess’ actions.
.
.
.
16) An appeal of a probable cause denial would fall within the
prosecutorial function. One aspect—the vague allegation of “guid[ingj” Harris in
(AC
¶
filing a judicial complaint—might fall outside the scope of prosecutorial
immunity. The allegation is simply too vague, however, to state a claim or
permit further analysis.
The Amended Complaint does not allege with clarity any conduct that
falls outside the prosecutorial function. True, there are stray, nonspecific
allegations of, e.g., false press releases, which could fall outside the scope of
immunity. These, however, are unsupported by any factual allegations, and
they appear to have no connection to any action of Gyss. Constitutional claims
A, B, C, D, E, and F are therefore dismissed based on prosecutorial immunity.
flY.
Other Grounds for Dismissal (Federal Claims)
Setting aside prosecutorial immunity, Gyss raises alternative grounds for
dismissal of the federal claims, A, B, C, D, E, and F. I discuss those grounds,
not only as alternatives, but as justification for my decision to dismiss based
on prosecutorial immunity with prejudice. It appears that granting a second
opportunity to amend would be futile.
10
In subsection IV.A, I discuss the claims individually. Although the
allegations are mixed and overlapping, I have attempted to segregate the
discussion according to the cause of action alleged. The statute of limitations,
although potentially applicable across the board, is most consequential in
relation to Claim ED, so I discuss it there. In Subsection IV.B, I discuss the
allegation, which reappears at various points in the Amended Complaint, that
Gyss was not permitted to practice criminal law in the County where her
husband was Acting County Prosecutor.’°
A. Failure to Plead A Claim
To survive a motion to dismiss, a complaint must plead facts, and not
mere conclusions, sufficient to plausibly allege the elements of a recognized
cause of action. See Section II, supra (citing Twombly, supra; Iqbal, supra). That
the Amended Complaint fails to do.
1. Malicious prosecution (Claim A)
Claim A alleges a
§
1983 claim of malicious prosecution. That Fourth
Amendment cause of action requires, inter alia, that the underlying criminal
prosecution “was initiated without probable cause” and that, as a result, “the
plaintiff suffered a deprivation of liberty consistent with the concept of seizure
as a consequence of a legal proceeding.” DiBella v. Borough of Beachwood, 407
F.3d 599, 601 (3d Cir. 2005); accord Halsey v. Pfeffer, 750 F.3d 273, 295-97
(3d Cir. 2014) (citing Johnson a Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007)). A
“prosecution without probable cause is not, in and of itself, a constitutional
One technical basis for dismissal, however, I will reject. Defendant asserts that
the Amended Complaint should be dismissed because plaintiff failed to serve the
original complaint within 90 days after filing. The remedy would be dismissal without
prejudice or an order that service be made within a specified time. See Fed. R. Civ. P.
4(m). Even ill granted the motion, I would likely choose the latter option, given that an
amended complaint has been filed and the parties have joined issue on the merits.
Gyss, by the way, has already received a similar indulgence from the Court. She failed
to answer the original complaint and was forced to file a motion to vacate default,
which the court granted. (DE 7, 8, g, 10)
10
11
tort. Instead, the constitutional violation is the deprivation of liberty
accompanying the prosecution”—Le., a Fourth Amendment seizure. Gab v.
City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). A “seizure” is defined
generally to occur “only when there is a governmental termination of freedom of
movement through means intentionally applied.” Brewer
ii.
County oflnyo, 489
U.S. 593, 596—97 (1989).
Here, no such seizure is alleged. Indeed, it is not clear just what is
alleged. No arrest is alleged, and it appears that the matter was charged by
Complaint-Summons, not Complaint-Warrant. (See n.4, supra; see generally
N.J. Ct. R. 7:2-1.) The Amended Complaint states in conclusory terms that
Cresci was “detained” or “confined,” but does not allege that he was even briefly
imprisoned, or that his freedom of movement was curtailed. The following
allegation provides a clue as to Cresci’s meaning:
Defendant[’]s actions caused Plaintiff to be held against his will
and restricted his freedom to leave or pursue matters important to
him.
20) These are conclusions, not facts, but they seem to relate to the
allegation that Cresci made “several required appearances in court.” (AC ¶ 10)
(AC
¶
The claim, then, would be that, simply by virtue of being charged and
required to make court appearances, Cresci was “seized” for Fourth
Amendment purposes. As to such an alleged “seizure” in connection with a
malicious prosecution claim, the Third Circuit has summarized the law thus:
In Gallo v. City of Philadelphia, we held that a plaintiff
seeking section 1983 relief for violation of his Fourth Amendment
rights was seized post-indictment because he had to post a
$10,000 bond, attend court hearings including his trial and
arraignment, contact Pretrial Services on a weekly basis, and was
prohibited from travelling outside of two states, New Jersey and
Pennsylvania. 162 F.3d at 222. Noting that we had adopted “a
broad approach in considering what constitutes a seizure,” Id. at
224, we concluded “that the combination of restrictions imposed
12
upon Qallo, because they intentionally limited his liberty,
constituted a seizure,” id. at 225.
In contrast, in DiBella v. Borough of Beachwood, we held that
the plaintiffs were not seized when “only issued a summons; they
were never arrested; they never posted bail; they were free to
travel; and they did not have to report to Pretrial Services.” 407
F.3d at 603. We noted that unlike the “significant pretrial
restrictions” imposed in 0db, the plaintiffs’ liberty in DiBella was
restricted only during their municipal court trial and that merely
attending trial does not amount to a seizure for Fourth
Amendment purposes. Id. We further explained that “[p]retrial
custody and some onerous types of pretrial, non-custodial
restrictions constitute a Fourth Amendment seizure.” Id.
Cty.,
835 F.3d 358, 367 (3d Cir. 2016), as amended (Sept.
16, 2016), cert. denied sub nom. Pomponic v. Black, 137 5, Ct. 2093 (2017). See
also Holmes u. McGuigan, 184 F. App’x 149, 15 1—52 (3d Cir. 2006) (finding no
Black v. Montgomery
seizure where “the only deprivation of liberty that resulted from [plaintiffs]
[H}aving to
traffic citation was the requirement that she appear in court.
.
.
.
defend oneself against a speeding ticket is not a seizure.”); Mantz v. Chain, 239
F. Supp. 2d 486, 503 (D.N.J. 2002).”
This was a disorderly-persons charge, pursued via summons, which
never went to trial and was eventually dismissed. The Amended Complaint
I note in addition that the Amended Complaint alleges in conclusoiy terms, but
not factually, that the underlying charge of harassment was not supported by
probable cause. Lack of probable cause is defined as the absence of “facts and
circumstances within [the charging authorities’] knowledge and of which they had
reasonably trustworthy information [that] were sufficient to warrant a prudent
Iperson] in believing that [the suspect] had committed or was committing an offense.”
Beck u. Ohio, 379 U.S. 89, 91(1964) (citation omitted). The Amended Complaint says
virtually nothing about the underlying facts and allegations. The malicious
prosecution claim is based on the initial denial of probable cause by the municipal
court, coupled with an “appeal” that did not comply with state-law procedural
requirements. Any arguable violation of state appeal procedures would not detract
from the factual existence of probable cause in the Beck v. Ohio sense. As to that
issue, however, the Amended Complaint says nothing.
13
does not allege that there were any pretrial restrictions on Cresci’s freedom of
movement, let alone extraordinary or onerous restrictions that would amount
to a Fourth Amendment seizure. For this independent reason, Claim A
(malicious prosecution), even if it survived the prosecutorial-immunity
analysis, would be dismissed.
2. Excessive force/unlawful detention (Claims B & C)
Claims B and C asserts
§ 1983 causes of action for excessive force and
unlawful detention. Both are Fourth Amendment claims, and therefore require
a “seizure.” For the reasons stated in the preceding section, no such seizure is
alleged.
To prevail on a
§ 1983 excessive force claim, “a plaintiff must show that a
seizure occurred and that it was unreasonable under the circumstances.”
Lamont v. New Jersey, 637 F.3d 177, 182—83 (3d Cir. 2011). See also Graham
v. Connor, 490 U.S. 386, 395 (1989); Rivas
198 (3d Cir. 2004). A
i1’.
City of Passaic, 365 F.3d 181,
§ 1983 claim of unlawful detention requires “(1) the
the
detention of the person, and (2) the unlawfulness of that detention” under
(3d
Fourth Amendment. Marable v. W Pottsgrove Twp., 176 F. App’x 275, 280
Cir.
Cir. 2006); see also James v. City of Wilkes-Barre, 700 F.3d 675, 683 (3d
2012). In either case, the claim rests on the Fourth Amendment and is
ilL,
predicated on a Fourth Amendment “seizure.” See Manuel z’. City of Joliet,
137 S. Ct. 911, 917 (2017); James, supra (officer’s insistence that child be
e” of
taken to hospital and that a parent accompany the child was not a “seizur
the parent).
The Amended Complaint makes no factual allegation sufficient to
seized
support an inference that Cresci was detained, arrested, imprisoned, or
in any way. For this alternative reason, Claims B & C must be dismissed.’2
Without further elaboration, Claim B alleges that “Defendant subscribed and
28)1
signed the oath on the inappropriate format on no less than 3 occasions.” (AC ¶
am unable to interpret this allegation.
12
14
3. Claim D (Abuse of process)
As noted above, Claim D is opaque, but the best guide to what was
intended may be found in the Facts section:
Defendant Oyess was so intent of abusing process that
she filed the appeal to her husband, Gaetano Gregory, at the
Hudson County Prosecutor’s Office without the knowledge of
Presiding Municipal Court Judge Frank Carpenter. Judge
Carpenter is the very Judge who denied probable cause on this
Landlord-Tenant issue. Further, tenant Harris was guided by
Defendant Qyess to file a judicial complaint in Trenton against
Frank Carpenter, for which the judge had to respond and address
Defendant Gyess’ actions.
(AC
¶
16) These factual allegations do not set forth a
§
1983 claim of abuse of
process.
“[A] claim of malicious use of process may state a Section 1983 claim if it
includes the elements of that common law tort as it has developed.” MMrdle ci.
Tronetti, 961 F.2d 1083, 1088 (3d Cir. 1992). Judge Bumb, in a § 1983 case,
has helpfully summarized those developing common-law principles:
For abuse of process to occur there must be use of the
process for an immediate purpose other than that for which
it was designed and intended. The usual case of abuse of
process is one of some form of extortion, using the process to
put pressure upon the other to compel him to pay a different
debt or to take some other action or refrain from it.
Restatement (Second) of Torts § 682 cmt. b (2012). To state a claim
for abuse of process in New Jersey, the plaintiff must allege: (1) a
coercive, illegitimate, or improper use of the judicial process; (2) an
“ulterior motive” by the defendants; and (3) “some further act after
the issuance of process representing the perversion of the
legitimate use of the process.” Simone v. Golden Nugget Hotel &
Casino, 844 F.2d 1031, 1036—37 (3d Cir. 1988) (citing Fielder
Agency ci. Eldan Constr. Corp., 152 N.J. Super. 344, 377 A.2d
1220, 1222 (N.J. Super. Ct. Law Div. 1977)); see also Coles ci.
Carlini, Civ. No. 10—6132, 2012 WL 1079446, *12 (D.N.J. Mar. 29,
2012). While they are not mutually exclusive, a claim for abuse of
process differs from a claim for malicious prosecution in that the
former concerns the “improper, unwarranted, and perverted” use of
15
legal process after it has been initiated, while the latter concerns a
legal proceeding that has been initiated maliciously and without
probable cause. Ash v. Cohn, 119 N.J.L. 54, 194 A. 174, 176 (N.J.
1937) (citation omitted); Coles, 2012 WL 1079446 at *12.
*3 (D.N.J.
Batiz v. Brown, No. CIV. 12-581 RMB/AMD, 2013 WL 1137531, at
Mar. 14, 2013).
This tort is distinct from malicious prosecution, i.e., the illegitimate
institution of criminal proceedings. Indeed, the “process” that is “abused” may
be entirely legitimate in its origins. What abuse of process requires is some act
“after an issuance of process representing the perversion of the legitimate use
of the process.” SBK Catalogue Partnership v. Orion Pictures Corp., 723 F. Supp.
1053, 1067 (D.N.J. 1989). There must be “‘further acts whereby [the defendant]
ff.”
demonstrably uses the process as a means to coerce or oppress the plainti
Ruberton v. Gabage, 280 N.J. Super. 125, 130 (App. Div. 1995) (citations
omitted).
The essential conduct alleged is that Qyss intervened in order to bring
about the issuance of process (which had been declined) against Cresci.
judicial
Secondarily, she is alleged to have somehow “guided” Gonzales to file a
misconduct complaint. These precede the issuance of process. Neither
constitutes a perversion of the legitimate purposes of process after it was
once
issued. Indeed, the Amended Complaint alleges no actions at all by Qyss
the criminal charges had been lodged.
So even setting aside prosecutorial immunity, see supra, Claim D
(abuse of process) would be dismissed for failure to state a claim.’3
I note in addition that these acts, whatever they were, occurred during Gyss’s
timetenure, and before the case was transferred to Kearny, suggesting that they are
barred as well. See Section IV.A.4.b & n. 18, infra.
13
16
4. Claim E (First Amendment retaliation/Title VU)
a) Title VII
To the extent Claim ED may contain a Title VII claim, that component of it
is dismissed. Although the title of Claim ED refers to Title VII (i.e., 42 U.S.C. §
2000e et seq.), it is not clear that a Title VII claim was truly intended. The
factual allegations refer to Title VII only as one of a generic list of kinds of
claims that Cresci, as an attorney, has brought against municipal agencies or
officials. (AC
¶
46)
At any rate, Title VII is not apt; a workplace discrimination statute, it
prohibits two categories of wrongful employer conduct:
The first type is called, for purposes of this opinion, status-based
discrimination. The term is used here to refer to basic workplace
protection such as prohibitions against employer discrimination on
the basis of race, color, religion, sex, or national origin, in hiring,
firing, salary structure, promotion and the like. See § 2000e—2(a).
The second type of conduct is employer retaliation on account of
an employee’s having opposed, complained of, or sought remedies
for, unlawful workplace discrimination. See § 2000e—3(a).
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342, 133 S. Ct. 2517,
2522 (2013).
Cresci is not here asserting his rights as an employee. Nor is he faulting
rs
Co., 100
Gyss’s conduct as an employer. Sheridan z.’. E.L DuPont Dc Nemou &
are
F.3d 1061, 1078 (3d Cir. 19%) (employers, not individual employees,
or
proper defendants under Title VII).’4 No Title VII claim of discrimination
retaliation is alleged.
b) First Amendment/Statute of limitations
I read Claim ED instead as asserting a First Amendment retaliation
claim.
Nor does the Amended Complaint allege that Cresci has fulfilled the
rs of
prerequisite of timely filing a charge with the EEOC. See, e.g., Comtns. Worke
’s motion
Amer. v. N.J. Dept. of Personnel, 282 F.3d 213, 216 (3d Cir. 2002). Cresci
papers contain no response to the defendant’s argument on that point.
‘4
17
In order to plead a retaliation claim under the First Amendment, a
plaintiff must allege: (1) constitutionally protected conduct, (2)
retaliatory action sufficient to deter a person of ordinary firmness
from exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the retaliatory
action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).
The Amended Complaint alleges the exercise of First Amendment rights
of speech and petition. The First Amendment protects access to the courts,
e.g., Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997), as well as an
individual’s right to speak on matters of public or social concern, see, e.g.,
Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001). Cresci, as
in
attorney, has brought cases against the City of Bayonne, and “cooperated
.”
several investigations regarding administrators known to defendant [Gyssj
46) Certain of those matters are listed by name. (AC ¶ 47)
ent
The retaliatory action alleged is, of course, the bringing of the harassm
ss. The
charge, which could be sufficient to deter a person of reasonable firmne
(AC
¶
from
Supreme Court has “never recognized a First Amendment right to be free
rds,
a retaliatory arrest that is supported by probable cause.” Reichie v. Mowa
granted
132 S. Ct. 2088, 2093 (2012). And in a prior case brought by Cresci, I
qualified immunity to arresting officers because such a right was not clearly
22, at *10
established. Cresci v. Aquino, No. CV134695KMJBC, 2017 WL 13563
rd is
(D.N.J. Apr. 10, 2017).’ Still, for an ordinary motion to dismiss the standa
le
different, and I will assume arguendo that an eventual finding of probab
cause would not wholly vitiate a claim of retaliation.
logic
In July 2013, the Third Circuit noted that it had “not decided whether the
, and so it appears that Jthe officer in
of Hartman applies to retaliatory arrest claims
that case] would be entitled to qualified immunity on the First Amendment claim.”
; see also
Primrose v. Mellot, 541 F. App’x 177, 180 n.2 (3d Cir. 2013) (emphasis added)
that the
George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (“Because we have found
did not violate [plaintiffs) Fourth
individual Federal Officers search and questioning
First
Amendment rights, we are hard-pressed to find that it could result in a
Amendment retaliation claim.”).
‘5
...
18
The causal link between Cresci’s exercise of First Amendment rights and
this criminal prosecution is alleged with less specificity. True, Gyss has a
personal and family connection to the County Prosecutor’s Office, and she
serves the City of Bayonne as a contract municipal prosecutor. But legal
representations against the municipality or cooperation in investigations of
officials “known to” Gyss, without more, do not plausibly establish retaliation.
Unless more specific factual pleading is required, the result would be an
unwarranted grant of defacto immunity to attorneys who oppose a
municipality in court. Claim E does, however, come closer than the others to
setting forth a cause of action.
I will therefore assume arguendo that the basic elements of a retaliation
claim have been pled and consider the statute of limitations. While the timebar is potentially applicable to more than one claim, see n. 18, infra, it is most
consequential here.
Section 1983 claims are subject to the State’s two-year statute of
limitations for personal injury tort claims, contained in N.J. Stat. Ann.
§
2A: 14—
2. Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir. 2013) (per curiam) (citing
Dique v. N.J State Police, 603 F.3d 181, 185 (3d Cir. 2010)). Federal law
controls when a
§
1983 claim accrues. Wallace v. Kato, 549 U.S. 384, 388
(2007). Under federal law, a cause of action accrues, and the statute of
limitations begins to run, “when the plaintiff knew or should have known of the
injury upon which its action is based.” Sameric Corp.
ii.
City of Philadelphia,
142 F.3d 582, 599 (3d Cir. 1998) (citation omitted).
Because this action was filed on May 6, 2017, any cause of action that
accrued before May 6, 2015, would be time-barred. The dates of Gyss’s actions
are not stated in the Amended Complaint, but the date range is clear. Her
wrongful acts are said to have “stem[med] from May 16, 2014 during a very
contentious municipal election.” (AC
¶
9) Perhaps that was the date of the
attempted filing of the original criminal complaint for harassment; the
Amended Complaint does not say. But Gyss’s alleged actions, whatever they
19
were, must have occurred before Gyss was “subsequently terminated from her
Position as Municipal Prosecutor.” (Id.) It is of public record that her position
terminated in October 2014.16 Any acts of retaliatory prosecution during Gyss’s
tenure, then, occurred long before May 6, 2015, the statute of limitations
cutoff.
The accrual of the claim was not delayed by lack of knowledge, see
Sameric, supra, nor was the limitations period tolled.’7 If the bringing of
charges was in retaliation for his protected First Amendment activity, then
Cresci knew he had a cause of action at the time. Even now, he alleges no new
information; he states only that he frequently was adverse to the City (or the
Prosecutor’s Office). If the inference that the municipal court prosecution was
retaliatory can be drawn at all, presumably it could have been drawn then.
1
The Amended Complaint refers to a date of May 16, 2014, and states that Gyss
was “subsequently terminated from her position as Municipal Prosecutor”. (AC ¶ 9)
Gyss states, and it is a matter of public record, that she served as municipal
prosecutor from 2010 through October 14, 2014. (DE 7-2 at ¶ 2) Although it is
irrelevant to the claims, I note for completeness that Gyss started serving another
term as municipal prosecutor as of August 1, 2017.
Gyss’s actions, in addition, preceded the transfer of the case to the municipal
court in Kearny. That transfer necessarily preceded that court’s dismissal of the
charges on May 7, 2015. And that date preceded the filing of the complaint in this
action by two years minus one day.
17
In a proper case, the court must consider whether the limitations period was
suspended, or tolled, see Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017), an
issue governed by state law, McPherson v. United States, 392 F. App’x 938, 944 (3d
Cir. 2010) (citing Dique, 603 F.3d at 185). Statutory tolling, under New Jersey law,
may arise from bases specifically listed. See, e.g., N.J. Stat. Ann. § 2A: 14—2 1 (minority
or insanity); N.J. Stat. Ann. § 2A: 14—22 (non-resident defendant). Equitable tolling
may be appropriate “where ‘the complainant has been induced or tricked by his
adversary’s misconduct into allowing the deadline to pass,’ or where a plaintiff has ‘in
some extraordinary way’ been prevented from asserting his rights, or where a plaintiff
has timely asserted his rights mistakenly by either defective pleading or in the wrong
*5 n. 4
forum.” Cason a Arie Street Police Dep’t, No. 10—0497, 2010 WL 2674399, at
(D.N.J. June 29, 2010) (citing Freeman u. State, 347 N.J. Super. 11, 31, 788 A,2d 867
(N.J. Super. Ct. App. Div. 2002)). No basis for statuton’ or equitable tolling of the First
Amendment retaliation claim is pled in the Amended Complaint or suggested by the
circumstances.
18
The application of the statute of limitations to other claims is less clear, at least
at the motion to dismiss stage. The statute of limitations defense may be considered
on a motion to dismiss, but only on the basis of the face of the complaint and other
16
20
5. Conspiracy
Claim F alleges that Gyss committed her unconstitutional acts in
combination with listed associates, whose activities are not otherwise
described. Adding these names does nothing to rehabilitate the claims against
Gyss, which I have already found to be legally inadequate. The motion to
dismiss Claim F is therefore granted.
B. Spousal Conflict of Interest
Scattered throughout the Amended Complaint are references to Gyss’s
holding her municipal prosecutor position at a time when her husband,
Gaetano Gregory, was the Acting Hudson County Prosecutor.’9 The Facts
section of the Amended Complaint alleges that under some unspecified state
statute, “Defendant [Gyssj was violating the law by practicing criminal law
within the
county
in which her husband was the county prosecutor.” (AC
‘
15)
items properly considered on a Rule 12(b)(6) motion. See Fried a JPMorgan Chase &
Co., 850 F.3d 590, 604 (3d Cir. 2017); see also Bethel v. Jendoco Const. Corp., 570
F.2d 1168, 1174 (3d Cir. 1978).
It is true of course that § 1983 causes of action like the ones alleged here will
generally accrue “at the time of the last event necessary to complete the tort, usually
at the time the plaintiff suffers an injury.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009). For example, “[flora search [the time of accrualj is the moment of the search.
For a false arrest, that is the moment when legal process justifies the detention or,
absent legal process, the moment of release.” Nguyen v. Commonwealth of
Pennsylvania, No. 17-3654, slip op. at 5 (3d Cir. Oct. 10, 2018) (citing Wallace, 549
U.S. at 390—9 1). But Cresci alleges here that it was only “[djuring the previous ten (10)
months” that he uncovered some of the alleged behind-the scenes machinations of
Gyss (AC ¶ 16), so he may intend to argue factually that the accrual date of some of
the claims was delayed. Such issues cannot necessarily be resolved on a Rule 12(b)(6)
standard, and it is unnecessary to reach them.
The malicious prosecution claim stands on a different footing. It does not accrue
until the underlying criminal proceeding terminates in the plaintiffs favor. See Heck v.
Humphrey, 512 U.S. 477, 489 (1994). The Kearny municipal court allegedly dismissed
the charges on May 7, 2015, and Cresci filed this action two years minus one day later,
on May 6, 2017. A malicious prosecution claim, then, is timely as alleged.
Gyss, as noted, became a Bayonne municipal prosecutor in 2010. It appears
from publicly available information that Gregory was promoted to Acting County
Prosecutor in mid-2012, after the then-County Prosecutor was appointed to the state
bench. Gregory continued as Acting Prosecutor until June 2015, when the position of
County Prosecutor was again filled.
19
21
“Defendant circumvented the requirement that relatives, specifically spouses,
are prohibited from practicing criminal law in which a relative, in this case a
husband, is a county prosecutor.” [sic] (AC
¶ 9)
Under Claim B (excessive force), the Amended Complaint alleges still
more obscurely that “Defendant subscribed and signed the oath on the
inappropriate format on no less than 3 occasions. Defendant with incorrect
advice, direction from her husband Gaetano Gregory, then the acting
prosecutor of Hudson county’; believed she could violate Plaintiff’s civil rights
when in fact she was in a position she could not legally and statutorily hold.”
(AC
28)
The relation between this allegation and the excessive force claim is
unclear. The sense may be that because a spousal conflict of interest rendered
Gyss’s appointment illegitimate, any force she caused to be applied was
therefore “excessive” (and perhaps any prosecution she undertook was
therefore malicious). This federal court does not sit to determine the legitimacy
of appointments under state law (particularly where the lawyer-plaintiff, given
several opportunities, will not specify what law he is talking about).2° Nor is
any authority offered for the proposition that such a conflict of interest, if it
existed, would constitute a violation of federal constitutional rights.
Finally there remains, of course, the statute of limitations. Gyss’s entire
relevant tenure as municipal prosecutor lies outside the two-year limitations
period (see supra), and there is no allegation that her marriage to Gregory was
or could have been concealed from any reasonably diligent inquirer.2’
N.J. Ct. R. 1:15-3(a) provides that a county prosecutor may not “practice on
N.J. Ct.
behalf of any defendant in any criminal, quasi-criminal or penal matter..
any defendant
R. 1:15-3(b) provides that a municipal prosecutor “shall not represent
in the municipal court thereof
Those prohibitions, directed at those who would simultaneously represent both
the prosecution and a criminal defendant, do not embody the disqualification rule
posited by Cresci here.
21
The allegation that Gyss was somehow improperly “jujsing her maiden name”
(AC ¶ 15), a common enough practice, does not plausibly suggest a plan to conceal the
conflict. She registered as an attorney under the name of Gyss in 1981, and remains
20
.
22
.“
State-Law Claims
V.
Claim G alleges the state-law tort of unlawful interference with
prospective economic advantage (consisting of some general but unspecified
pursuit of the legal profession). Claim H alleges tortious interference with
contract (i.e., the lease between Cresci and Gonzales, which Cresci was seeking
to terminate). Claim J seeks a declaraton’ judgment that “pursuant to statute”
Gyss was improperly practicing criminal law in the same County in which her
husband was acting prosecutor. Gyss asserts a number of arguments for
dismissal of these state-law claims, but I do not reach them. I will decline to
exercise supplemental jurisdiction.
For the reasons expressed above, the Amended Complaint contains no
viable federal cause of action. When a court has dismissed all claims over
which it had original federal-question jurisdiction, it has the discretion to
decline to exercise supplemental jurisdiction over any remaining state-law
claims. See 28 U.S.C.
§ 1367(c); see also Hedges v. Musco, 204 F.3d 109, 123
(3d Cir. 2000) (quoting Borough of West M%ffiin v Lancaster, 45 F.3d 780, 788
(3d Cir. 1995)). Where, as here, the federal claims are dismissed at the early,
Rule 12(b)(6) stage of litigation, declination of supplemental jurisdiction is fairly
routine. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). This case
is in its early stages, and discoven’ has been stayed. The federal claims are
insubstantial. No considerations of judicial economy, convenience, fairness, or
comity weigh in favor of retaining a
few
makeweight, nonspecific state law
claims. The state-law claims are therefore dismissed on jurisdictional grounds.
VI.
Dismissal With or Without Prejudice
The Third Circuit has liberally permitted pleading amendments to ensure
that “a particular claim will be decided on the merits rather than on
technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).
registered under that name today. See Attorney Search Results for “Susan Gyss,”
https: / / portal.nicourts.gov/webe7 /pnveb /PRSen’letPublicAuth /
amRUHgepTwWWiiBQpI9 ypNuum4oN 16* / ISTANDARD?AppName=AttorneySearch.
-
23
Indeed, where a complaint is dismissed on Rule 12(b)(6) grounds, “a District
Court must permit a curative amendment, unless an amendment would be
inequitable or futile.” Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)
(emphasis added). Accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d
Cir. 2008) (citing Grayson u. Mayview State Hasp., 293 F.3d 103, 108 (3d Cir.
2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)).
It is true that this is the first order of dismissal. The Complaint, however,
has already been amended once. Cresci submitted the Amended Complaint in
response to a prior motion to dismiss and for sanctions which asserted
grounds similar to those asserted here. In response to the new complaint, the
motion to dismiss was terminated and the defendant was forced to revise and
refile it. In short, Cresci headed off dismissal by submitting an amended
pleading that purported to cure the defects of the original—in particular, the
failure to rebut prosecutorial immunity or repair the substantive legal defects
of the individual counts. That Amended Complaint, however, fails to fix the
problems that had been forcefully brought to the plaintiff’s attention. The
plaintiff, who is an attorney, represents himself, and was a participant in the
underlying events; he was not required to consult a third-party client to obtain
the basis for any omitted allegations.
I conclude that amendment would be inequitable and futile. The
dismissal is therefore with prejudice.
CONCLUSION
For the foregoing reasons, the motion of the defendant, Susan Gyss, to
dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), is
GRANTED, with prejudice. An appropriate order is filed herewith.
1’
Dated: October 15, 2018
HON. KEVIN MCNULFY
United States District Judge
24
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