PRUNKEL v. COUNTY OF BERGEN et al

Filing 39

OPINION. Signed by Chief Judge Jose L. Linares on 11/15/17. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 17-5154 (JLL)
STEVEN PRUNKEL,
OPINION

Plaintiff,
V.

COUNTY OF BERGEN, et al.,
Defendants.

LINARES. Chief District Judge.
This matter comes before the Court by way of Defendants N. DeSantis (“DeSantis”), John
Molinelli (“Molinelli”), and the Office of Monroe County District Attorney, Monroe County, and
elected Monroe County District Attorney E. David Christine’s (collectively, “the Monroe
Defendants”) Motions to Dismiss Plaintiff Steven Prunkel’s (“Plaintiff’) Complaint pursuant to
Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 19, 22, 23).
Plaintiff has submitted Opposition to the Motions to Dismiss, (ECF No. 29), which DeSantis has
replied to, (ECF No. 31). The Court decides this matter without oral argument pursuant to Rule
78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants
Monroe Defendants’ and Molinelli’s Motions to Dismiss all claims against them. Furthermore,
the Court grants DeSantis’ Motion to Dismiss Counts I, II, and VII, but denies the Motion as to
Counts III, IV, V, VI, VIII, and IX.

BACKGROUND’

On July 29, 2013, Plaintiff was shot twice by Kevin Lasch (“Lasch”) during an argument
at Lasch’s apartment.

(ECF No. 1 (“Compi.”)

¶

29).

While investigating the shooting, the

Peimsylvania State Police (“PSP”) and the Monroe County District Attorney’s Office (“MCDA”)
interviewed Lasch. (Id.

¶

32). During the interview, the PSP asked Lasch about alleged gun

purchases made at gun shows over the course of several months. (Id.

¶ 34).

Lasch told the PSP

and MCDA that he filled out gun purchase applications for Plaintiff, using Plaintiffs money. (Id.

¶ 35—36).

At no point did the PSP or MCDA ask Lasch about the circumstances surrounding the

shooting, despite having knowledge at the time of the investigation that Lasch had shot and
seriously injured Plaintiff. (Id.

¶ 3 8—39, 42).

Plaintiff alleges that the PSP and MCDA prompted

Lasch to write an “anonymous” tip by email containing some of the information he provided to
the PSP. (Id.

¶ 70).

PSP Trooper DeSantis then contacted the Ridgefield Park Police Department,

which, according to Plaintiff, bypassed the standard operating procedure of first contacting the
Bergen County Prosecutor’s Office. (Id.

DeSantis reported to the Ridgefield Park Police

¶ 60).

that the PSP had received an anonymous tip by email concerning Plaintiff. (Id.

¶ 56).

According

to the supposedly anonymous tip, Plaintiff had stored assault rifles in a wooden crate at the factory
where he worked in Ridgefield Park, New Jersey. (Id.

¶ 57).

Within one hour of communicating with DeSantis, the Ridgefield Park Police directed
several of its police units to the factory in order to follow up on the anonymous tip. (Id.

¶

61).

Upon their arrival, Ridgefield Park Police were given consent to search the factory by the owner
and quickly found a 200 pound crate near Plaintiffs work station containing rifles and handguns.

This background is derived from Plaintiffs Complaint, which the Court must accept as true at this stage of the
proceedings. SeeAlston v. Counoywide Fin. Corp., 585 f.3d 753, 758 (3dCir. 2009).

2

(Id.

¶J 78—82). Upon discovering the weapons, the Ridgefield Park Police immediately detained

Plaintiff and contacted the PSP and MCDA to collect additional information about Plaintiff (Id.

¶J $5, $7). DeSantis advised the Ridgefield Park Police that the PSP was investigating Plaintiff
and a third party for illegally purchasing firearms and that Plaintiff could not legally possess
firearms by virtue of a prior conviction. (Id.

¶ 89—91). Based on this information, Plaintiff was

arrested and charged by Assistant District Attorney Molinelli and the Bergen County Prosecutor’s
Office with numerous weapons offenses, including gun charges and possession of guns by a felon.
(Id.

¶ 97). Plaintiff was indicted on 21 counts in the Superior Court of Bergen County and was

held pending trial from August 2014 to September 2015. (Id.

¶ 117—18).

During this time, Plaintiff was still suffering significant injuries that he sustained as a result
of the gunshot wounds.

(Id.

¶ 119). In fact, Plaintiffs condition worsened while he was

incarcerated and he was hospitalized on two occasions to treat his injuries. (Id.
also states that he was denied psychological counseling. (Id.

¶

120). Plaintiff

¶ 121). While incarcerated, Plaintiff

sought discovery from the Bergen County Prosecutor’s Office regarding the grand jury
proceedings and the source of the anonymous tip, but the information was not produced to him.
(Id.

¶J 122—126). The Bergen County Prosecutor’s Office, however, did produce the serial

numbers and photographs of the guns to Plaintiff (Id.

¶ 127). In September 2015, Plaintiff was

brought before the Bergen County Superior Court and advised that all of the charges against him
had been dropped. (Id.

¶

133). No explanation was given by the Bergen County Superior Court

or any of the Defendants as to why the charges were dropped. (Id.

¶ 134).

Apparently, the guns were registered only to Lasch, not Plaintiff, and there was no other
evidence that connected Plaintiff to the weapons besides Lasch’s information. (Id.

¶ 98—100).

Plaintiff asserts that Lasch’s information did not provide the various defendants with probable
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cause for his arrest and detainment because Lasch had attempted to murder Plaintiff and therefore
Lasch’s infonnation was not credible. (Id.

¶

103). Plaintiff further asserts that the PSP, MCDA,

Bergen County Sheriffs Department, and Ridgefield Park Police attempted to hide their lack of
probable cause by making it appear that the raid and Plaintiffs arrest was based on an anonymous

tip when in fact it was not. (Id.

¶ 44).

Moreover, Plaintiff claims that the guns never belonged to

him, and that he was framed by the various police departments, who planted the weapons in the
factory in order to bring charges against him. (Id.

¶J 72—77).

Based on this, Plaintiff brought this

action against the various agencies and actors for his allegedly unlawful arrest and detainment in
violation of his rights under 42 U.S.C.
(“NJCRA”).

§

1983

(“

1983”) and New Jersey’s Civil Rights Act

Specifically, Plaintiff alleges Counts I (false arrest/false imprisonment), II

(supervisory liability), III (abuse of process), IV (malicious prosecution), V (failure to intervene),
VT (civil conspiracy), VII (unlawful policy), VIII (excessive bail), and IX (substantive due process)
against all defendants.

Accordingly, the Monroe Defendants, Molinelli, and DeSantis each

brought Motions to Dismiss Plaintiffs Complaint.
LEGAL STANDARD
I.

Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a complaint for lack of subject-matterjurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff,
as the party asserting jurisdiction, bears the burden to establishing the federal court’s authority to
hear the matter. Packard v. Provident Nat ‘1 Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). An attack
under Fed. R. Civ. P. 12(b)(l) may either assert a factual or facial challenge to the court’s
jurisdiction. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006); Gottid
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). When a defendant facially attacks

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the Court’s jurisdiction under Rule 12(b)(1), this type of challenge contests the adequacy of the
language used in the pleading; the trial court must therefore construe the pleadings in a light most
favorable to the plaintiff and presume all well-pleaded factual allegations in the complaint as true.
Gould, 2201 F.3d at 176. Alternatively, when bringing a factual attack, the defendant contends

that the facts on which the plaintiffs allegations rely are not true. Id. Therefore, the plaintiffs
allegations do not benefit from a presumption of truthfulness. Id. The court, instead, must weigh
the evidence in its discretion by taking into account affidavits, documents, and even limited
evidentiary hearings. Id. Here, Defendants are bringing Motions under 12(b)(1) because it is the
proper mechanism for raising the issue of whether immunity bars federal subject matter
jurisdiction. Blanciak v. Allegheny Lutdlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996) (citing
Pennhttrst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98—1 00 (1984)).
II.

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

To withstand a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Belt Atl. Corp. v. Twombty, 550 U.S. 544,
570 (2007)). “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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “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.” Id. (quoting Twombly, 550 U.S. at 556).
To determine the sufficiency of a complaint under Twombly and Iqbal in the Third Circuit,
the court must take three steps: first, the court must take note of the elements a plaintiff must plead
to state a claim; second, the court should identify allegations that, because they are no more than

5

conclusions, are not entitled to the assumption of truth; finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (citations omitted). “In deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached to the complaint, matters of the public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.” Mayer v.
Betichick, 605 F.3d 223, 230 (3d Cir. 2010).
ANALYSIS
I.

The Monroe Defendants

Section 1983 provides, in relevant part:
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.
.

.

.

.

42 U.S.C.

§ 1983.

Therefore, to state a claim for relief under

§ 1983, a plaintiff must allege two elements: (1)

a person deprived him or caused him to be deprived of a right secured by the Constitution or laws
of the United States, and (2) the deprivation was done under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255—56 (3d Cir. 1994).
It has long been established that “neither a State nor its officials acting in their official
capacities are ‘persons’ under

§ 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

(1989); see also Grabow v. S. State Corr. Facility, 726 F. Supp. 537, 538—39 (D.N.J. 1989).
Accordingly, the Monroe Defendants are not “persons” within the meaning of a
6

§ 1983 suit and

all claims against it must be dismissed.

See, e.g., Salerno v. Corzine, No. 06-3547 (FSH), 2006

U.S. Dist. LEXIS 92353, at *3 (D.N.J. Dec. 20, 2006) rev’don other grounds, 449 F. App’x 11$
(3d Cir. 2011).
In addition to bringing claims tinder

§ 1983, Plaintiffs complaint also asserts claims

against the Monroe Defendants under the NJCRA. A person may bring a civil action under the
NJCRA in two circumstances: “(1) when he’s deprived of a right, or (2) when his rights are
interfered with by threats, intimidation, coercion, or force.” felicioni v. Admin. Office of Courts,
961 A.2d 1207, 1218 (N.J. Super. Ct. App. Div. 2008). The NJCRA was modeled after

§ 1983,

and thus courts in New Jersey have generally looked at claims under the NJCRA “through the lens
of

§ 1983.” Trafton v. City of Woodbttiy, 799 F.Supp.2d 417, 443—44 (D.N.J. 2011); see also

C’hapman v. Net’ Jersey, No. 08-4 130 (AFT), 2009 U.S. Dist. LEXIS 75720, at *7 (D.N.J. Aug.
25, 2009) (“Courts have repeatedly construed the NJCRA in terms nearly identical to its federal
counterpart.
*

. . .“);

Armstrong v. Sherman, No. 09-7 16 (AET), 2010 U.S. Dist. LEXIS 55616, at

15 (D.N.J. June 4, 2010) (“[T]he New Jersey Civil Rights Act is a kind of analog to section 1983

Consistent with the above

§ 1983 analysis, New Jersey Courts, as well as the Third Circuit,

have held that a State is not a “person” for purposes of the NJCRA. See Brown v. State, 124 A.3d
243, 255—56 (N.J. Super. Ct. App. Div. 2015) (“Given that the Legislature did not choose to
include an express waiver of sovereign immunity in the Civil Rights Act and that the State enjoys
immunity under the analogous

§ 1983, we conclude that the State is immune from a suit for

damages under the Civil Rights Act.”); see also Didiano v. Balicki, 488 F. App’x 634, 63 8—39 (3d
Cir. 2012) (holding that the State is not a “person” under the NJCRA because although the NJCRA
does not define “person,” the definition of “person” in N.J.S.A.

7

§ 1:1-2 “explicitly states that the

word ‘person’ shall include the State of New Jersey only in the limited circumstance of certain
property.”). Hence, the Monroe Defendants are not “persons” for purposes of the NJCRA and are
not subject to liability under that act. Plaintiff seemingly concedes this point as he does not address
the issue in his opposition to the Motion to Dismiss. (See ECF No. 29 at 28—34). Thus, all claims
against the Monroe Defendants must be dismissed with prejudice.
Furthermore, even if § 1983 and NJCRA did apply, the claims against Monroe Defendants
would be dismissed to the extent that they allege intentional torts. For example, Counts I (false
imprisonment), III (abuse of process), IV (malicious prosecution), and VI (civil conspiracy) are all
claims against the Monroe Defendants for intentional torts. However, a public entity may not be
held liable for intentional torts allegedly committed by its employees. See Panarello v. City of
Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. 2016); Soto v. City of Newark, 72 F. Supp. 2d 489,
497 (D.N.J. 1999) (holding that a public entity may not be held liable for intentional torts of a
public employee) (citing McDonough v. Jorda, 519 A.2d 874, 880 (N.J. Super. Ct. App. Div.
1986)). Accordingly, since the Monroe Defendants cannot be held liable for intentional torts,
Plaintiffs claims must be dismissed with prejudice.
II.

Molinelli

It is well settled that “a state prosecuting attorney who act[s] within the scope of his duties
in initiating and pursuing a criminal prosecution” is not amenable to suit. 1mb/er e. Pachtman,
424 U.S. 409, 410 (1976). The Supreme Court held that a prosecutor is absolutely immune from
damages under § 1983 for acts that are “intimately associated with the judicial phase of the criminal
process” while functioning as an advocate for the state. Id. at 430—31; see also Moore v. Middlesex
County Prosecutor’s Office, 503 Fed. Appx. 108, 109 (3d Cir. 2012) (“Although a prosecutor’s
deliberate destruction of exculpatory evidence is not entitled to absolute immunity, the decision to

8

withhold such evidence from the defense while functioning as an advocate for the state is protected
by absolute in-imunity.”). Since 1mb/er, the Supreme Court has held that “absolute immunity
applies when a prosecutor prepares to initiate a judicial proceeding, or appears in court to present
evidence in support of a search warrant application.” Van de Kamp
343 (2009) (citations omitted).

Prosecutorial

immunity

Goldstein, 555 U.S. 335,

also extends to decisions to seek an

indictment and to preparations for a grand jury. See Ray v. New Jersey, 219 F. App’x 121, 125
(3d Cir. 2007).
In this case, Plaintiff alleges that Molinelli should have acted to secure additional
information before initiating the prosecution and failed to supervise the police during the
investigation and factory raid.

(ECF No. 29 at 35—37).

However, there is nothing in these

allegations to suggest that Molinelli was acting outside the scope of his prosecutorial duties in
investigating and pursuing a criminal prosecution against Plaintiff In fact, the record suggests
Molinelli was not involved in any criminal activity because the PSP and other law enforcement
agencies “did not want the Bergen County Prosecutor’s Office to know of the improper and illegal
means by which Plaintiff was framed and otherwise wrongly arrested and detained.” (Compl.

¶

53). Thus, Molinelli is absolutely immune from all claims alleged by Plaintiff because the alleged
acts were plainly taken in exercise of Molinelli’s core function as a prosecutor. See Rehberg e.
Patilk, 566 U.S. 356, 365 (2012); 1mb/er, 424 U.S. at 430—3 1. Therefore, Molinelli is entitled to
prosecutorial immunity, and all claims against him are dismissed with prejudice.
III.

DeSantis
1. Qualified Immunity
DeSantis asserts that Plaintiff may not recover damages from him because he is entitled to

qualified immunity. (ECF No. 23-2 at 10). Qualified immunity shields government officials “from

9

liability for civil damages insofar as their conduct does not violate clearly established
constitutional rights of which a reasonable person would have known.” Harlow 1’. fitzgerald, 457
U.S. $00, $18 (1982). for qualified immunity to attach, an official must demonstrate his conduct
was objectively reasonable. Id. at 818—19. Qualified

immunity is

unavailable to a defendant

government official if the plaintiffs complaint meets two prongs: (1) the facts alleged by the
plaintiff show the violation of a constitutional right; and (2) the plaintiffs constitutional right was
clearly established at the time of the violation. $attcier v. Katz, 533 U.S. 194, 201 (2001), (“If no
constitutional right would have been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.”); George v. Rehiel, 738 F.3d 562, 572 (3d
Cir. 2013).
At this juncture, the allegations in Plaintiffs claims under

§ 1983 and the NJCRA are

sufficient and overcome DeSantis’ assertion that he is entitled to qualified immunity.
discussed, to bring a

As

§ 1983 claim, and/or a parallel claim under the NJCRA, a plaintiff must allege

that: (1) a person deprived him or caused him to be deprived of a right secured by the Constitution
or laws of the United States, and (2) the deprivation was done under color of state law. See West.
487 U.S. at 48; Piecknick, 36 f.3d at 1255—56; Trafton, 799 f.Supp.2d at 443—44. Tn this matter,
Plaintiff has done just that as to DeSantis.
Plaintiff alleges that, without justification, he

was

framed, arrested, and detained based on

information provided by DeSantis, which allegedly DeSantis knew to be false. (Compl. ¶j 72—
77). According to Plaintiff, the arrest

was

improper because DeSantis knew the information was

provided by a non-credible source, and subsequently DeSantis purposefully misled the Ridgefield
Park Police into believing the information was provided by an anonymous tip. (Id.

¶ 56—57, 70).

Plaintiff also claims that DeSantis’ communication with the Ridgefield Park Police also bypassed

10

the proper operating procedure, which would require DeSantis to first contact the Bergen County
Prosecutor’s Office. (Id.

¶ 60). Furthermore, Plaintiff alleges that DeSantis and the PSP moved

the crate of weapons to Plaintiffs work station prior to reporting the anonymous tip in order to
frame Plaintiff. (Id.

¶ 72). Thereafter, Plaintiff was indicted on 21 counts in the Superior Court

of Bergen County and held pending trial from August 2014 to September 2015. (Id.

¶ 117—18).

Again, Plaintiff asserts DeSantis, among other defendants, deprived him of his rights and liberties
by keeping Plaintiff in custody for this period because DeSantis was aware that he lacked probable
cause to arrest Plaintiff, but chose to do so anyway. (Id.

¶ 72). Finally, Plaintiff alleges that

DeSantis was acting under color of law, as he presented himself as an officer of the State who was
authorized to take such actions. (Id.

¶ 142). These actions, Plaintiff asserts, deprived him of

various civil rights, including loss of liberty. (Id.

¶ 144). This Court finds that Plaintiff has

therefore sufficiently pled all the requisite elements to assert causes of action for violations of

§

1983 and the NJCRA.
However, in this case, simply pleading the requisite elements for the constitutional claims
is only a part of the analysis. The Court must also conclude that, at this point in the litigation,
DeSantis is not entitled to enjoy qualified immunity. See Hartow, 457 U.S. at 818.

Here,

Plaintiffs complaint contains sufficient factual allegations that could allow a reasonable fact finder
to conclude that DeSantis acted in an unreasonable manner toward Plaintiff and beyond the scope
of his role as a police officer. Clearly, Plaintiffs right to be free of unreasonable searches and
seizures was known to DeSantis and was constitutionally established at the time of the alleged
violation.

Therefore, the Court finds that Plaintiffs complaint contains allegations that his

constitutional rights were knowingly violated by DeSantis and that his right to liberty was
established far before the alleged violation occurred.

11

For example, as discussed, Plaintiff has alleged that DeSantis knew that the anonynious tip
was actually provided by a non-credible witness, and that DeSantis did not have probable cause,
but chose to assist in Plaintiffs unlawful arrest and detainment. (Compl.

¶ 139—45). These

alleged actions deprived Plaintiff of his liberty (a clearly established constitutional right) and
caused him to suffer physical and emotional distress and humiliation. (Id.). Plaintiff further
alleges that these actions were done maliciously and with an intent to hanTi Plaintiff. (Id.

¶ 143).

Hence, it is Plaintiffs assertion that DeSantis knowingly chose to exceed the scope of his duties
by acting in a manner that no reasonable police officer would act, and falsely and maliciously
caused his arrest and detention. (Id.

¶ 154—55). The Court must accept these allegations as true

at this point in the litigation. See Aiston, 585 F.3d at 758. Should a jury find these allegations
credible, DeSantis would not be entitled to qualified immunity as his action would be inconsistent
with how a reasonable police officer with knowledge of a clearly established constitutional right
would act. Accordingly, the Court finds that such allegations are sufficient to withstand a Motion
to Dismiss based on qualified immunity.
2. Common Law Claims
Plaintiff has successfully pled claims for civil conspiracy, abuse of process, malicious
prosecution, failure to intervene, excessive bail, and a constitutional claim of substantive due
process against DeSantis. Conversely, Plaintiff has failed to plead claims for supervisory liability,
unlawful policy, and false imprisonment/false arrest.
a. Civil Conspiracy

In New Jersey, a civil conspiracy is “a combination of two or more persons acting in
concert to commit an unlawful act, or to commit a lawful act by unlawful means,’ the primary
element of which ‘is an agreement between the parties to inflict a wrong against or injury upon

12

another, and an overt act that results in damage.” Banco FopttlarN. Am v. Gandi, 876 A.2d 253,
263 (N.J. 2005) (quoting Morgan v. Union Ctv. 3d. of chosen freeholders, 633 A.2d 955, 998
(N.J. Super. Ct. App. Div. 1993)). Due to the circumstantial nature of evidence in a conspiracy
action, the “‘question of whether an agreement exists should not be taken from the jury” if there
is a possibility that the jury can “infer from the circumstances that the alleged conspirators had a
meeting of the minds and thus reached an understanding’ to achieve the conspiracy’s objectives.”
Morgan, 633 A.2d at 998. Here, Plaintiff has alleged that DeSantis and the Ridgefield Park Police
agreed to act in concert and deprive Plaintiff of his rights. Specifically, Plaintiff has alleged that
DeSantis knew that the anonymous tip was actually based on the information of a non-credible
witness, and that DeSantis did not have probable cause for Plaintiffs arrest. (Compl.

¶J

173—79).

Despite this knowledge, DeSantis acted in concert with the Ridgefield Park Police and other
defendants to frame and arrest Plaintiff for the possession of the guns. (Id.). Thus, Plaintiffs
complaint contains allegations that DeSantis and at least one other defendant jointly decided to
deprive Plaintiff of his rights and took overt actions to accomplish their goal. These allegations
are sufficient to show a prima facie cause of action for civil conspiracy against DeSantis.
Therefore, the Court denies DeSantis’ Motion to Dismiss Count VI.
b. Maliciotis Prosecution

In order to state a claim for malicious prosecution, a plaintiff must establish: “(1) the
defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor;
(3) the defendant initiated the proceeding without probable cause; (4) the defendant acted
maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” Johnson v. Knorr, 477 F.3d 75, $ 1—82 (3d Cir. 2007). Here, Plaintiff has alleged

13

that the criminal proceedings in Bergen County Superior Court ended in his favor when the charges
were dismissed without explanation. (Compi.

¶

163). As previously stated, Plaintiff alleges the

proceedings were initiated without probable cause because Lasch’s information was biased against
Plaintiff, and that Plaintiff was falsely imprisoned pending trial as a result of the prosecution. (Id.

¶f

159, 164). Plaintiff further alleges that DeSantis maliciously acted despite his knowledge that

the case lacked probable cause. (id.

¶J 158—59).

As for the final element, DeSantis argues that he

could not have initiated criminal charges because he is a PS? trooper who merely passed tip along
and that it was the New Jersey authorities who actually arrested Plaintiff and brought charges
against him. (ECF No. 23-2 at 13—14). However, Plaintiff has sufficiently alleged that DeSantis
forwarded a false tip to the New Jersey authorities and never revealed to the Bergen County
Prosecutor’s Office that the anonymous tip was provided by Lasch. See Townes v. City of New
York, 176 F.3d 138, 147 (2d Cir. 1999) (“Initiation or continuation of a proceeding may also be
shown where an arresting officer creates false information likely to influence a jury’s decision and
forwards that information to prosecutors, or withholds relevant and material information.”).
Therefore, the Court finds that Plaintiff has pled aprimafacie case for malicious prosecution and
denies DeSantis’ Motion to Dismiss Count IV.
c. Abuse ofProcess
Similarly, Plaintiff has sufficiently pled a claim for abuse of process.

The essential

elements of misuse or abuse of process “are an ulterior motive and some further act after the
issuance of process representing the perversion of the legitimate use of the process.” Sirnone v.
Golden Nugget Hotel & Casino, 844 F.2d 1031, 1036—37 (3d Cir. 198$) (internal citations
omitted). Plaintiffs claim for abuse of process meets this criteria. Specifically, Plaintiff alleges
that DeSantis, after initiating proceedings against him, maliciously misrepresented the facts

14

surrounding Plaintiff’s arrest and withheld information to keep Plaintiff detained in the County
Correctional facility. (Compi.

¶ 154).

Plaintiff ftirther alleges that DeSantis knew that the charges

against Plaintiff were groundless, but pursued them with the ulterior motive of detaining Plaintiff
and protecting himself from possible civil charges if the source of the tip was discovered. (Compl.

¶J

155). Based on these allegations, the Court finds that Plaintiff has pled aprimafacie case of

abuse of process and denies DeSantis’ Motion to Dismiss Count III.
d. Failure to Intervene
“If a police officer, whether supervisory or not, fails or refuses to intervene when a
constitutional violation such as an unprovoked beating takes place in his presence, the officer is
directly liable under Section 1983.” Smith v. Mensinger, 293 f.3d 641, 650 (3d Cir. 2002) (quoting
to Byrd v. clark, 783 f.2d 1002, 1007 (11th Cir. 1986)). However, an officer is only liable if there
is a realistic and reasonable opportunity to intervene. Smith, 293 F.3d at 650. Plaintiff’s Complaint
meets this standard. Plaintiff alleges that DeSantis was a PSP trooper at the time of Plaintiff’s
arrest.

(Cornpl.

¶

167). Plaintiff further alleges that DeSantis’ knowledge of the non-credible

source behind the anonymous tip imposed on him a duty to intervene in the unjustified arrest,
detention, and false imprisonment of Plaintiff. (Id.

¶

168). Moreover, the allegedly unjustified

arrest of Plaintiff violated his constitutional right under the Fourth and fourteenth Amendments.
(Id.). Finally, Plaintiff claims that DeSantis’ involvement in the investigation gave him reasonable
opportunity to intervene in Plaintiff’s allegedly unjustified arrest, detainment, and false
imprisonment. (Id.

¶

169).

These allegations are sufficient to sustain a claim for failure to

intervene. Thus, the Court denies DeSantis’ Motion to Dismiss Count V.
e. Excessive Bait

15

To state an excessive bail claim under

§ 1983, Plaintiff must allege facts showing that his

bail was excessive in violation of the Eighth Amendment. McKnight v. Taylor, No. 12-1684
(RMB), 2012 U.S. Dist. LEXIS 166143, *7 (D.N.J. Nov. 20, 2012). Moreover, a plaintiff must
show that a defendant proximately caused his excessive because “a public official is liable under

§ 1983 only if he causes the plaintiff to be subjected to a deprivation of his constitutional rights.”
Id. (quoting Baker v. McCollan, 443 U.S. 137, 142 (1979)).

Here, Plaintiff alleges that his

$750,000 bail was excessive because the Bergen County Judge was misled into believing that there
was probable cause for Plaintiffs arrest when in fact there was not. (Compl.

¶J 116). Plaintiff

further alleges that DeSantis deliberately misled officials, including the Bergen County Judge, by
not revealing the actual source of the anonymous tip, which resulted in the Bergen County Judge
setting an inappropriate amount for bail. (Id.

¶ 199). Accepting these statements as true at this

point in the proceeding, Plaintiff has sufficiently plead a prima fade cause of excessive bail.
Therefore, the Court denies DeSantis’ Motion to Dismiss Count VIII.

f

Substantive Due Process

The Fourteenth Amendment to the United States Constitution, Section 1, guarantees that
“[njo State shall.

.

.

deprive any person of life, liberty, or property, without due process of law.”

A substantive due process violation is the deprivation of a protected interest involving an abuse of
official power that “shocks the conscience.” United Artists Theatre Circuit, Inc. v. Township of
Warrington, 316 F.3d 392, 399 (3d Cir. 2003). One such protected interest is fundamental rights,
which include those guaranteed by the Bill of Rights, as well as certain liberty and privacy interests
implicitly protected by the Due Process Clause. Washington v. Glucksberg, 521 U.S. 702, 720
(1997). With respect to this case, Plaintiff is asserting that DeSantis deprived him of his Fourth
and Fourteenth Amendment rights by participating in Plaintiffs wrongful arrest, detention, and

16

false imprisonment. (Compl.

¶ 204). Plaintiff asserts that these actions deprived him of his

fundamental right to liberty. (Id.). furthermore, Plaintiff alleges that DeSantis acted in a way that
“shocks the conscience” by fabricating evidence in order to support Plaintiffs arrest and
prosecution for offenses he did not commit. (Id.

¶J 206—08). These allegations are sufficient to

show that Plaintiff has been deprived a liberty interest in violation of substantive due process.
Therefore, the Court denies DeSantis’ Motion to Dismiss Count IX.
g. $upervisoiy Liability

for supervisory liability, government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondent superior. Iqbal, 129
S. Ct. at 1948. However, a defendant may be held liable for actions taken in their individual
capacity if: (1) as policymakers, they, “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [the] constitutional
harm”; or (2) they “participated in violating the plaintiffs rights, directed others to violate them,
or, as the person in charge, had knowledge of and acquiesced in [their] subordinates’ violations.”
A.li ex rel. JYK. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Here,
Plaintiff has made no showing that DeSantis was a supervising officer or controlled, trained, or
designed policies for any other law enforcement officers in the Complaint. (Compl.

¶

146—151).

Therefore, Plaintiff has not alleged a prima facie case of supervisory liability against DeSantis,
and the Court grants DeSantis’ Motion to Dismiss Count II.
h.

UnlafiulPoticy

Count VII of the Complaint alleges

§ 1983

Monell liability against all Defendants. In

lionel/v. Dep’t of Soc. Servis., 436 U.S. 658, 694 (1978), the United States Supreme Court held

that:

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[A] local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents. Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible § 1983.
Id.

The Supreme Court has also concluded that Monelt liability only attaches where “the
decision maker possesses final authority to establish municipal policy with respect to the action
ordered.” Pembaurv. Cincinnati, 475 U.S. 469, 482 (1986). Moreover, the Court held that § 1983
municipal liability attaches only where “a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” Id. at 483. In this case, however, Plaintiff has not
alleged any facts that show that DeSantis was a decision maker, policy maker, or supervisor.
(Compl.

¶J 180—192). The record only shows that DeSantis was a PSP Trooper, (Id. ¶ 7), and not

someone with “final authority to establish municipal policy” with respect to Plaintiffs arrest and
detainment. See Pembaur, 475 U.S. at 482. Therefore, Plaintiff has failed to sufficiently plead a
Monell claim for unlawful policy and the Court grants DeSantis’ Motion to Dismiss Count VII.
i.

False Imprisonment/false Arrest

Finally, the Court concludes that Plaintiffs false imprisonment/false arrest claim is time
barred. New Jersey’s statute of limitations for personal injury torts governs the statute of limitation
for

§ 1983 claims arising in New Jersey. Cito v. Bridgewater Twp. Police Dep ‘t, $92 F.2d 23, 25

(3d Cir. 1989). Therefore,

§ 1983 claims arising in New Jersey have a two-year statute of

limitations. Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998). furthermore, it is well
settled that the statute of limitations for a false arrest/false imprisonment claim begins to run once
the plaintiff is detained pursuant to legal process. Wallace v. Kato, 549 U.S. 384, 391 (2007). In

1$

_____

this case, it is unclear when Plaintiff was arraigned, but he was detained in August 2014 and
indicted in December 2014 afler being arraigned. (Compi.

¶

117). Thus, the latest charges could

have been brought was December 2016. However, Plaintiffs Complaint was not filed until July
13, 2017. (See Compl.). Therefore, Plaintiffs false arrest claim is time barred and the Court grants
DeSantis’ Motion to Dismiss Count I.
CONCLUSION
For the aforementioned reasons, the Court grants the Monroe Defendant’s and Molinelli’s
Motions to Dismiss all claims against them. Furthermore, the Court grants DeSantis’ Motion to
Dismiss Counts I, II, and VII, but denies the Motion as to Counts III, IV, V, VI, VIII, and IX. An
appropriate Order follows this Opinion.

Dated: November

2017

L. LINARES
O
ief Judge, United States District Court

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