PIERRE v. STATE OF NEW JERSEY, TREASURY DEPARTMENT et al

Filing 109

OPINION. Signed by Chief Judge Jose L. Linares on 5/14/2019. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 18-3443 (JLL)
DUQUENE PIERRE,
OPINION

Plaintiff,
V.

STATE Of NEW JERSEY, TREASURY
DEPARTMENT, et al.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of the Motions for Judgment on the Pleadings
filed by Defendants John Luby, City of Elizabeth (“Elizabeth”), Elizabeth Police Department
(“Elizabeth PD”), Thomas Koczur, and County of Union (“Union”), pursuant to Federal Rule of
Civil Procedure 12(c), and the Motion to Dismiss Plaintiff Duquene Pierre’s Complaint filed by
Defendants John Furda and Ann Rubin. pursuant to Federal Rule of Civil Procedure 12(b)(6)
(collectively, “Defendants’ Motions”). (ECF Nos. 88, $9, 90, 91). Plaintiff opposed Defendants’
Motions, and Defendants replied thereto. (ECF Nos. 95, 96, 97, 98, 99, 100, 101, 102, 103). The
Court decides this matter without oral argument, pursuant to Federal Rule of Civil Procedure 78.
For the following reasons, the Court grants Defendants’ Motions in part, but denies the part of
Defendants’ Motions seeking to dismiss certain claims against Defendant Koezur.

I.

BACKGROUND’

The Court shall only reiterate the facts to the extent necessary to determine Defendants’
Motions, as the Court has already discussed the surrounding circumstances and procedural history
in detail, (see ECf No. 66 at 2—6), and writes for the parties who are familiar with the background

of this case. To summarize, Plaintiff alleges that he was arrested in March 1994 and convicted in
1 996 afier a jury trial in state court for a murder in New Jersey that he allegedly did not commit.
(Cornpl.

¶fJ

14, 127). Plaintiff alleges, among other things, that there was exculpatory evidence

that was overlooked by the police and prosecutors, including a South Carolina traffic ticket, a
Georgia motel receipt, and several phone calls from Florida that indicated that Plaintiff was not in
New Jersey at the time of the homicide. (See Cornpl.

¶

34—3 7). As a result of the murder

conviction, Plaintiff spent over twenty-two years in prison, until the New Jersey Supreme Court
granted him a retrial on December 17, 2015 and, on July 8, 2016, the second trial court granted
Plaintiff’s motion for ajudgment of acquittal based on a lack of evidence. (Compl.

¶ 44—45,

51,

70—71).
Plaintiff alleges the following allegations in relation to each of the individual Defendants
presently moving before the Court:
•

Defendant Koczur

—

An officer for Defendant Elizabeth PD who investigated the

abovementioned homicide and allegedly first suspected Plaintiff because of his Haitian
ethnicity and the fact that he drove a similar model car as one observed at the shooting.
(Cornpl.

¶

37, 40).

Plaintiff alleges that Defendant Koczur intentionally and

knowingly coerced a suspect, Lamar McCall, to make false statements implicating

This background is derived from Plaintiffs Complaint, (ECF No. 1 at Ex. A (“Compi.”)), which the Court must
accept as true at this stage of the proceedings. See Aiston i’. Cotrntiywkle fin. Coip., 585 f.3d 753, 758 (3d Cir.
2009).

2

Plaintiff. (Compl.

¶

37). Later on, during Plaintiffs first murder trial, Defendant

Koczur allegedly coerced Allison Johnson, a confidential informant who was not
present at the time of the homicide, to provide false testimony to the Court that she saw
Plaintiff at the scene of the homicide. (Compl.

¶ 38—39).

Defendant Koczur allegedly

did not disclose that Johnson was a confidential informant, and Plaintiff was therefore
unaware of said fact until in or around June 2016, when Plaintiffs attorney for the
second murder trial made an inquiry to an assistant prosecutor and the assistant
prosecutor discovered that Johnson was in fact a confidential informant. (Compi.

¶J

39, 41, 72).
•

De/ndant Lubv

—

An officer for Defendant Elizabeth PD who, along with Defendant

F urda, allegedly took statements from McCall “which they knew or should have known
were false and damaging to the Plaintiffs alibi.” (Compl.

¶ 43).

Plaintiff also alleges

that Defendant Luby conducted an interview with two witnesses simultaneously, which
Plaintiff claims was improper. (Cornpl. ¶ 43). Plaintiff further states that said interview
was relied upon in Plaintiffs allegedly unlawful arrest and prosecution. (Compi.
•

Defendant fttrda

—

¶ 43).

A Union County Prosecutor’s Office investigator who, along with

Defendant Luby, allegedly took statements from McCall “which they knew or should
have known were false and damaging to the Plaintiffs alibi.”

(Compi.

¶

43).

Defendant Furda also allegedly presented false or misleading statements to the Grand
Jury to make it appear that Plaintiff was not traveling outside of New Jersey at the time
of the homicide. (Compl.

¶ 42).

Specifically, Plaintiff alleges that Defendant Furda

discredited Plaintiffs alibi by misrepresenting the height of the South Carolina State

3

Trooper who pulled Plaintiff over and the statements of the Georgia motel’s employee.
(Compi.
•

¶ 42).

De/i’ndctnt

Rubin

—

The assistant prosecutor with the Union County Prosecutor’s Office

who represented the state in Plaintiffs first murder trial and allegedly “pursued
alternate theories and motives surrounding the murder, which were mutually
exclusive.” (Compi.

¶ 44). Defendant Rubin also presented Johnson as a witness, who

testified that she saw Plaintiff in Elizabeth, New Jersey a few hours after the homicide.
(Compi.

¶J 38—39). Plaintiff claims that it would have been evident to a seasoned

prosecutor such as Defendant Rubin that Johnson was a confidential informant, because
Johnson’s criminal record reflected that she had been arrested numerous times but was
never convicted. (Compi.

¶ 39).

Plaintiff also broadly alleges that all of the Defendants listed above “knew or should have
known” that Johnson was a confidential informant and did not disclose same in violation of the
constitutional principles established in Brady v. Maryland, 373 U.S. $3, 87 (1963). (Compl. ¶ 41).
Plaintiff further states that the actions of the abovernentioned Defendants “represent a conspiracy
to deny and violate the civil rights of Plaintiff.” (Compl.

¶ 145). finally, Plaintiff claims that

Defendants engaged in a custom or practice of permitting and facilitating unlawful arrest and
prosecutions “in this instance, and in other instances,” and that the failure of among others, the
institutional Defendants currently moving before this Court—i.e., Defendants Elizabeth, Elizabeth
PD, and Union—to train, supervise, and discipline their subordinates resulted in a pattern or
practice of condoning this allegedly improper conduct. (Compl.

¶ 46,

148—52).

Accordingly, Plaintiff filed a notice of claim on October 3, 2016, and filed suit on January
22, 2018 in New Jersey Superior Court. Union County. which was subsequently removed to this

4

Court. (ECF No. 1; see also ECf No. 89-3 at 14 (stating the uncontested date of Plaintiffs notice

of claim filing)). In his Complaint, Plaintiff asserts a claim against the New Jersey Treasury
Department pursuant to the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 et seq. (which is listed
as Count I), and a claim against the attorneys who represented him during his initial trial for
Professional Negligence/Breach of Responsibility (which is listed as Count II). (Compl.
132).

JJ 49—

Plaintiff then asserts the following causes of action against all remaining defendants

including but not limited to the abovementioned Defendants: (1) Violation of the New Jersey Civil
Rights Act (“the NJCRA”) and New Jersey Constitution (“Count III”); (2) Violation of 42 U.S.C.
(4) Unlawful
§ 1983 (“Count IV”); (3) Conspiracy in Violation of 42 U.S.C. § 1985 (“Count V”);

Policy, Practice, or Supervision under lionel! v. Dep ‘t ofSoc. Servs. of N. YC., 436 U.S. 658, 694
(1978) (“Count VI”); (5) Common Law Intentional Infliction of Emotional Distress (“lIED”)
(“Count VII”): (6) Common Law Negligent Infliction of Emotional Distress (“NIED”) (“Count
of
VIII”): (7) Common Law Malicious Pt-osecution (“Count IX”): and (8) Common Law Abuse
Process (“Count X”). (Compl.

¶J 133—75)

On November 5, 2018, this Court issued an Opinion and Order granting in part the motions
to dismiss filed by several defendants (“the Court’s prior Opinion”).

(ECF Nos. 66, 67).

Defendant Union was one of the defendants who originally moved for dismissal, and the Court

of
specifically found that all of Plaintiffs claims must be dismissed against it with the exception
Count VIII, because Plaintiff had sufficiently established a prima flicie claim for NIED against
Defendant Union. (ECF No. 66 at 10—14). As for the police and prosecutor defendants who
previously moved for dismissal, the Court found that Plaintiff had failed to state a claim against
them and that they were also entitled to various forms of immunity.

5

(Id. at 14—22).

Now,

Defendants move for dismissal arguing in part that the logic from the Court’s prior Opinion applies
to them as well.
II.

LEGAL STADARD

A. Failure to State a Claim

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 to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ad. Corp. v. Twomblv, 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.”
Id. (citing Tii’omblv, 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 Twomb/v, 550 U.S. at 556).

To determine the sufficiency of a complaint under Twonthly and Iqbal in the Third Circuit,
the Court must take three steps: (I) “it must tak[e] note of the elements [the] plaintiff must plead
to state a claim”; (2) “it should identify allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth; and (3) “[w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Connelly v. Lane Constr. Coip., 809 F.3d 780, 787 (3d Cir.
2016) (internal quotations and citations omitted). “In deciding a Rule 12(b)(6) motion, a court
must consider only the complaint, exhibits attached to the complaint, matters of public record, as
well as undisputedly authentic documents if the complainant’s claims are based upon these
documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

6

B. Judgment on the Pleadings

move
“After the pleadings are closed—but early enough not to delay trial—a party may
riters (‘an. v.
for judgment on the pleadings.” fed. R. Civ. P. 12(c); see also Liberty Int’l Underw
ered to be
Scottsdale Ins. C’o., 955 F. Supp. 2d 317, 323 (D.N.J. 2013) (“The pleadings are consid
nal claims
‘closed’ after the complaint and answer have been filed, along with any reply to additio
ent on the
asserted in the answer.”) (citation omitted). When a party makes a motion for judgm
Elizabeth,
pleadings based on the defense of failure to state a claim, such as Defendants Luby,
es] the
Elizabeth PD, Koczur, and Union in this case, (see ECF Nos. $8, 89, 91), the Court “appl[i
42$ (3d Cir.
same standards as under Rule l2(b)(6).” See Turbe v. Gov’t of VI., 93$ F.2d 427,
146 (3d Cir.
1991); see also Caprio v. Healthcare Revenue Recoveiy Gip., LLC. 709 F.3d 142,
2013) (stating same).
III.

DISCUSSION

A. Defendant Koczur

1. 19$3&theNJCRA
a. failure to State a Claim
Pursuant to

§ 1983,

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.

Accordingly, to state a claim for relief under

§ 1983, a plaintiff must allege two elements:

Constitution or
(1) a person deprived him or caused him to be deprived of a right secured by the

7

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); Piecknickv. Pa., 36 F.3d 1250, 1255—56 (3d Cir. 1994).
In addition to bringing claims under

§ 1983, Plaintiff also asserts Count III against

Defendant Koczur pursuant to 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. 0//Ice of Courts, 404 N.J. Super.
382, 400 (App. Div. 2008) (emphasis omitted). 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.”

§

Traflon v. Cliv of Woodburv, 799 F. Supp. 2d 417, 443—44 (D.N.J. 2011); see also

Chapman v. NJ, No. 08-4130, 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:
Section 1983.”); Armstrong v. Sherman, No. 09-716, 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.”).
Therefore, the Court shall analyze Counts III, IV, and VI under the same framework.
Here, Plaintiff alleges that Defendant Koczur, as a police officer with Defendant Elizabeth
PD, coerced two witnesses (McCall and Johnson) to offer testimony that Defendant Koczur knew
was false in order to implicate Plaintiff in the homicide, and that Defendant Kocztir did not disclose
this information. (Compi. ¶J37—39. 41). Plaintifffurther alleges that Defendant Koczur’s conduct
violated Plaintiffs Fourth, Fifth, Sixth. Eight, and Fourteenth Amendment rights, including but
not limited to Plaintiffs right against unlawful arrest under the Fourth Amendment, right to
confront witnesses against him under the Sixth Amendment, and due process rights under the
Fourteenth Amendment. (Compi.

¶ 137—43). In general, these allegations are sufficient to meet

8

of
the abovernentioned elements for aprimafacie claim against Defendant Koczur for violations

§ 1983 and the NJCRA.
While the Court finds that these allegations are sufficient to allow Plaintiffs

§ 1983

and NJCRA claims to survive dismissal at this early stage of the proceedings, there are two caveats
to the Court’s conclusion.
First, Plaintiffs

§ 1983 claim is time-barred to the extent that it relates to a claim for

false arrest or imprisonment. New Jersey’s two-year statute of limitations for personal injury torts
governs the statute of limitation for

§ 1983 claims arising in New Jersey. Montgomery v.

a
DeSimone. 159 F.3d 120, 126 (3d Cir. 1998). It is well settled that the statute of limitations for
false arrest/imprisonment claim under

§ 1983 begins to run once the plaintiff is detained pursuant

Third
to legal process. Wallace v. Kato, 549 U.S. 384, 391 (2007). Furthennore, Courts in the
as
Circuit have found that the discovery rule is inapplicable to cases of false arrest/imprisonment,
See
a plaintiff will know both of the injury and those responsible at the time of his or her arrest.
53
Rotax v. Whitman, 175 F. Supp. 2d 720, 727 (D.N.J. 2001) (citing cases finding same), aff’d,
F. App’x 635 (2002). Here, Plaintiffs false arrest claim accrued when he was arraigned at some
point between 1994 and 1996, (Cornpl.

¶ 14, 127), which means that the filing of this case in

of
2016 was far outside of the applicable two-year statute of limitations. Moreover, principles
equitable tolling, such as the discovery rule, cannot apply to Plaintiffs false arrest/imprisonment
claim under

arrest,
§ 1983, because Plaintiff would “be aware both of his injury. i.e., the wrongful

and those responsible for that injury, i.e., the police, at the time of arrest.” See Rotax, 175 F. Supp.
2d at 727.
Furthermore, Plaintiff has failed to state a Monell claim against Defendant Koczur. As
discussed in more detail below, infra Section III.D. I .b, a Monell claim can only be asserted against

9

a defendant with policymaking or supervisory authority.

Here, Plaintiff does not offer any

allegations that Defendant Koczur was a supervisor or policyrnaker, but rather alleges that
Defendant Koczur was a police officer investigating the murder. (Compi.
two exceptions, however, Plaintiffs

¶ 16). Besides these

§ 1983 claims against Defendant Koczur with regard to all

other constitutional violations are sufficient to proceed at this juncture. Defendant Koczur has not
raised any argument that persuades the Court otherwise.

Accordingly, the Court shall grant

Defendants’ Motion with regard to Count VI and to the extent that Plaintiffs

§ 1983 claim is

related to an allegation of false arrest/imprisonment against Defendant Koczur, but shall continue
to analyze Counts 111 and IV as to the application of qualified immunity.
b. Qualified Immunity
The doctrine of qualified

immunity

shields government officials, such as Defendant

Koczur, “from liability for civil damages insofar as their conduct does not violate clearly
established.

.

.

constitutional rights of which a reasonable person would have known.” Harlow v.

fitzgerald, 457 U.S. 800, 818 (1982); Walter v. Pike Ctv., Pa., 544 F.3d 182. 191 (3d Cir. 2008)
(stating same). Therefore, to determine whether qualified immunity applies to Plaintiffs claims
against Defendant Koczur for violating

§ 1983 and the NJCRA, the Court “must ask whether the

conduct alleged by the plaintiff violated a clearly established principle of constitutional or statutory
law[, and] [i]f so,

.

.

.

whether the unlawfulness of the action would have been apparent to an

objectively reasonable official.” Walter, 544 F.3d at 191 (internal quotations and citation omitted);
Ramos v. flowers, 429 N.J. Super. 13, 24 (App. Div. 2012) (concluding that “the well-established
law concerning the affirmative defense of qualified immunity” under

damages claims under the NJCRA).

10

§ 1983 actions applies to

At this juncture, Plaintiffs allegations are sufficient to overcome Defendant Koczur’s
assertion that he is entitled to qualified

immunity.

As the Court already determined above, supra

Section I1I.A. l.a.. Plaintiff has alleged that Defendant Koczur violated several of his clearly
established rights, including but not limited to his fifth, Sixth, and Fourteenth Amendment rights.
In response, Defendant Koczur argues that his actions in investigating Plaintiff at most amount to
negligence, which does not divest an officer of qualified immunity. (ECF No. 89-3 at 21). The
Court does not agree. Plaintiff alleges, and the Court must accept as true at this stage of the
proceedings, that Defendant Koczur intentional/v and knowingly coerced and persuaded witnesses
to offer false statements against Plaintiff in an attempt to frame him, which rises above a level of
negligence and is not protected by qualified immunity. See White v. Paulv, 137 S.Ct. 548, 551
(201 7) (stating that qualified immunity will “protect[] all bcLt the plainly incompetent or those who

knowing/v violate the law.”) (emphasis added) (internal quotations and citations omitted); see also
Hcttsey v. PfeifJr, 750 F.3d 273, 293 (3d Cir. 2014) (“We emphatically reject the notion that due
process of law permits the police to frame suspects. Indeed, we think it self-evident that a police
officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable
corruption of the truth-seeking function of the trial process.”) (quotations and citations omitted).
Defendant Koczur also argues that qualified immunity applies to Plaintiffs claims under

§ 1983 and the NJCRA to the extent that they are based on Defendant’s alleged failure to disclose
information in violation of Plaintiffs rights to confront the witnesses against him and to
exculpatory evidence, because a police officer’s obligation to disclose said information was not
clearly established at the time of Plaintiffs initial murder trial in 1996. (ECF No. 89-3 at 21). In
support of this argument, Defendant Koczur relies on a case where the Third Circuit Court of
Appeals applied qualified immunity to the plaintiffs Brady claim because a police officer’s

11

obligation to disclose exculpatory evidence “was not clearly established in this Circuit at the time
of’ the plaintiffs conviction in 1994. Gibson v. Superintendent ofiVi Dept of Law and Pub.
Safety-Div. of State Police, 411 F.3d 427. 443—44 (3d Cir. 2005), overruled on other grounds by
Dique v. N.J State Police, 603 f.3d 181 (3d Cir. 2010).
The Court is not persuaded that the same result should occur in this case.

Though

Defendant Koczur argues that Gibson stands for the proposition that a police officer’s obligation
to disclose exculpatory evidence was not clearly established until the year 2000, other courts in
the Third Circuit have interpreted Gibson as holding that said obligation was established at the
earliest in 1995. after the United States Supreme Court’s decision in Kvles v. Whitley. 514 U.S.
419, 421 (1995). See Thomas v. City of Phila., 290 F. Supp. 3d 371, 384 (E.D. Pa. Feb. 2, 2018)
(“In Gibson.

. .

the Third Circuit Court of Appeals held that officers’ Brady obligations were knot

clearly established at the time of [the plaintiffs] prosecution in 1994.’

...

became clearly established in 1995, when the Supreme Court decided Kyles

Those obligations
. . . .“)

(citations

*7 (E.D. Pa. Apr. 23,
omitted); Domenech v. City of Phila., No. 06-1325, 2009 WL 1109316, at

2009) (“[I]n Gibson the Third Circuit also found that before 1995 police officers were entitled to
immunity if they failed to produce exculpatory evidence, because their obligation to turn over this
evidence was not clearly established constitutional law until 1995, at the earliest”). The Court
shall follow these courts’ interpretations of Gibson, 411 f.3d at 443—44, and, considering
Plaintiffs prosecution and conviction occurred in 1996, i.e., after the Supreme Court’s decision in
Kyles, 514 U.S. at 421, the Court shall not apply qualified immunity to Plaintiffs claims against
Defendant Koczur to the extent that they relate to a violation of Brady, 373 U.S. at 87, or the
Confrontation Clause. Accordingly, Defendants’ Motions are denied to the extent that they seek
dismissal of Counts III and IV against Defendant Koczur.

12

2.

1985
To state a

§ 1985(3) conspiracy claim, a plaintiff must show: “(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) (quoting United B/id. of Carpenters & Joiners of Am. v. Scott, 463 U.S.
825, 828—29 (1983)). A plaintiff must also allege both “that the conspiracy was motivated by
discriminatory animus against an identifiable class and that the discrimination against the
identifiable class was invidious.” Id. at 135. “[C]laims under [sS] 1985 must be pleaded with
specificity in order to withstand a motion to dismiss. Broad, conclusory allegations, unsupported
by specific facts implicating specific defendants are insufficient to state a claim upon which relief
can be granted.” Martin

i’.

Del. Law Sc/i. of Widener Unir., 625 F. Supp. 1288, 1297 (D. Del.

1985), affd, $84 F.2d 1384 (3d Cir. 1989) (internal citation omitted).
The Court finds that Plaintiff has failed to meet the first element of a prima fade claim
under

§ 1985, because Plaintiff does not set forth any factual allegations showing that Defendant

Koczur conspired with any other defendant to allegedly frame Plaintiff and/or withhold evidence.
“To constitute a conspiracy, there must be a ‘meeting of the minds.” Startzell v. City of Phi/a.,
533 F.3d 183, 205 (3d Cir. 200$) (quoting Adickes r. 5Ff Kress & Co., 398 U.S. 144, 158 (1970)).
Here, Plaintiff does not set forth facts sufficient to show that any of the defendants, besides
Defendant Koczur, agreed to or were even aware that the testimony of McCall and Johnson was
allegedly coerced and fabricated. Moreover, as discussed in the Court’s prior Opinion and in the

13

following sections, Plaintiff cannot show that some of these defendants violated Plaintiffs rights
at all, let alone conspired with Defendant Koczur to do so.
Though Plaintiffs Complaint offers conclusory statements that the defendants conspired
to deprive him of his rights, (Compl.

¶J 41, 145), such broad allegations are not sufficient for a §

1985 claim to survive the motion to dismiss stage. Capogrosso v. Supreme Cottrt ofi”Li, 588 F.3d
180, 185 (3d Cir. 2009) (stating that allegations of conspiracy must provide “some factual basis to
support the existence of the elements of a conspiracy: agreement and concerted action.”) (citations
omitted); see a/so Watson v. Sec’r Pa. Dept of Cotr., 436 F. App’x 131, 137 (3d Cir. 2011)
(affirming dismissal of conspiracy claim, finding plaintiffs “allegations of conspiracy to be
conclusory and wanting” where plaintiff “invoke[d] ‘conspiracy,’ but fail{ed] to plead an actual
agreement between the parties”).
FurthenTlore, this analysis of Plaintiffs failctre to state a

§ 1985 claim applies not only to

Defendant Koczur but to all remaining Defendants to the extent said claim against them is not
already dismissed under the various immunities discussed in the following sections. Therefore,
because Plaintiff failed to allege an agreement between any of the defendants in this case, the Court
shall grant Defendants’ Motions to dismiss Count V against Defendant Koczur and, more broadly,
to dismiss Count V against all remaining Defendants.

3. Tort Claims
a.

Time-Barred
Defendant Koczur argues that all of Plaintiffs common law claims must be dismissed

because they are time-barred. Defendant Koczur is correct that under the New Jersey Tort Claims
Act (“the NJTCA”), which governs tort claims brought under New Jersey law against a public
entity, a person is “forever barred from recovering against a public entity or public employee if:

(a) [said person] failed to file the claim with the public entity within 90 days of accrual of the claim
•

.

.

or (b) [t]wo years have elapsed since the accrual of the claim..

.

.“

N.J.S.A. 59:8-8. Defendant

Koczur is also correct that some of Plaintiffs common law claims accrued on the date of the
alleged injury. See Am/and Props. Corp. u. Atuminztm Co. ofAm., 808 F. Supp. 1187, 1190 (D.N.J.
1992) (“Ordinarily, the statute of limitations for an action begins to run when all the elements of
the cause of action are present or, more plainly, ‘from the moment of the wrong.”) (quoting Lopez
v. Svyer, 62 N.J. 267, 274 (1973)).

According to Defendant Koczur, Plaintiffs common law claims accrued in or around 1996,
when he was allegedly injured based on his arrest, prosecution, and conviction; and therefore, the
notice of claim filed in October 2016 and the filing of this action in March 2018 were past the
expiration of the ninety-day requirement and two-year statute of limitations, respectively. (ECF
No. 89-3 at 14).

The Court does not agree with this argument as to Plaintiffs malicious

prosecution claim, because said claim did not accrue until Plaintiffs second murder trial was
dismissed in his favor in or around July 2016. See Geisster v. Atlantic CTh’, 19$ F. Supp. 3d 389,
402 (D.N.J. 2016) (“It is well-settled that a malicious prosecution claim [under New Jersey law]
does not accrue until the criminaL proceeding has terminated in a plaintiffs favor.”). Considering
Plaintiff filed notice in early October 2016, i.e., within ninety days of the July 2016 accrual date,
and this action in January 201$, i.e., within two years of the July 2016 accrual date, the Court
concludes that Plaintiffs malicious prosecution claim against Defendant Koczur is not time-barred
under the NJTCA.
Furthermore, even if the Court were to accept Defendant Koczur’s accrual argument as to
Plaintiffs remaining lIED. NIED. and abuse of process claims, it would nevertheless be
appropriate to apply the discovery rule to same. See Beattchamp v. Amedio, 164 N.J. ill, 117

15

(2000) (“[tjhe only exception to that well established notion of accrual is the case where the victim
either is unaware that he has been injured or, although aware of an injury, does not know that a
third party is responsible.”). Specifically, the discovery rule delays “the accrual of a cause of
action until the injured party discovers, or by the exercise of reasonable diligence should discover,
that the elements of a claim exist.” Michaels v. State ofNi, 955 F. Supp. 315, 326 (D.N.J. 1996)
(citations omitted).
Here, the Court agrees with Plai nti ff that he could not have known about his current claims
until he and his counsel for the second murder trial discovered the allegedly coerced and fabricated
evidence against him, and Defendant Koczur’s alleged failure to disclose same. (Compi. ¶j 39,
72).

Though Plaintiff does

not

provide a specific date, the Court nevertheless concludes that

Plaintiffs discovery of this information must have occurred in or before June 2016, because
Plaintiff alleges: (I) that his counsel inquired into whether Johnson was a confidential informant
“prior to Plaintiff Pierre’s retrial” and the assistant prosecutor promptly disclosed said information;
and (2) that his second murder trial began in June 2016. (Compi.

¶ 39,

72). Therefore, the Court

shall utilize the discovery rule to toll the accrual of Plaintiffs common law causes of action to
sometime in or before June 2016.
Under this analysis, Plaintiffs causes of action are timely under the two-year statute of
limitations period imposed by the NJTCA, considering Plaintiff brought this action in January
201$ and the Court is applying an accrual date in or before June 2016. However, Plaintiffs TIED,
NIED, and abuse of process claims must nevertheless be dismissed, because Plaintiff did not file
a notice of claim within ninety days as dictated by the NJTCA. Specifically, Plaintiff concedes
that he submitted his notice of filing on October 3, 2016, (ECF No. 95 at 3), which was filed more
than ninety days from the accrual date that occurred as to these claims in or before June 2016.

16

Having found that Plaintiffs notice of claim was not timely filed as to Counts VII, VIII,
and X, the Court must determine whether extraordinary circumstances are present so that the Court
can excuse the late filing. Specifically, the NJTCA allows a claimant to file notice within one year
after the accrual of his or her claims if: (1) the public employee would not be “substantially
prejudiced” by the Court doing so; and (2) the claimant demonstrated through personal knowledge
that “extraordinary circumstances” existed to explain why the notice of claim was filed late. Tripo
v. Robert Wood Johnson Med. Ctr., 845 F. Supp. 2d. 621, 630—31 (D.N.J. 2012). Here, Plaintiff
has not presented any extraordinary circumstances to excuse his late filing of notice. In fact,
Plaintiff only addresses the notice of claim in his brief by stating, without more, that “[t]he Notice
of Claim was timely filed.” (ECF No. 95 at 13). Even if Plaintiff addressed the issue in more
detail, however, the Court does not find it likely that Plaintiff under these facts would have
articulated the extraordinary circumstances required by the NJTCA. See force/la v. Cit ofOcean
City, 70 F. Supp. 2d 5 12, 517 (D.N.J. 1999) (holding that a claimant’s ignorance as to the NJTCA’s
ninety-day requirement alone does not qualify as extraordinary circumstances.); Blcmk v. CTh of
Elizabeth, 162 N.J. 150, 151 (1999) (analyzing that a claimant’s lack of due diligence in
discovering the proper defendants alone does not constitute extraordinary circumstances.).
Therefore, the Court finds that Plaintiffs TIED, NIED. and abuse of process claims are time-barred
and shall grant Defendants’ Motions to dismiss Counts VII, VIII, and X against Defendant Koczur.

b. failure to State a Claim
Having found that all of Plaintiffs common law claims are time-barred except his claim
for malicious prosecution, the Court must now analyze whether Plaintiff stated a claim for Count
IX. To successfully state apriniafacie claim of malicious prosecution under New Jersey law, a
plaintiff must show that: “(1) the previous action was initiated by the defendant: (2) the action was

17

the action
motivated by malice: (3) there was an absence of probable cause to prosecute: and (4)
.
was terminated favorably for the plaintiff.” Land v. Helmet, 843 F. Supp. 2c1 547, 550 (D.N.J
action is
2012) (qcioting Linct v. Schmid, 67 N.J. 255, 262 (1975)). “The essence of the cause of
lack of probable cause, and the burden of proof rests on the plaintiff” Id.

(quoting

Lind. 67 N.J.

at 262).
ous
Here, Plaintiff has sufficiently pled all of the elements ofa prima fctcie claim for malici
Defendant
prosecution at this early stage of the proceedings. Specifically, Plaintiff alleges that
g witnesses
Koczur initiated criminal proceedings against him without probable cause by coercin
ffs arrest
to falsely implicate Plaintiff in a murder and using said witnesses as the basis for Plainti
and conviction. (Compi.

¶J 3 8—39, 41).

Plaintiff also alleges that the criminal proceedings against

judgment
him eventually ended in his favor as his conviction was overturned and he was granted a
of acquittal for lack of evidence in his second murder trial. (Compl.

¶J 70—71).

Plaintiff further

on the
alleges that Defendant Koczur was aware that Plaintiffs arrest and conviction were based
maliciously
false testimony of McCall and Johnson, and that Defendant Koczur intentionally and
did not disclose same. (Compl.

¶ 38—39, 41).

Because Plaintiff has alleged facts to support each

ant Koczur
element of a prima fade claim for malicious prosecution, Count IX against Defend
survives dismissal at this time.
seek to
In summary, the Court shall grant Defendants’ Motions to the extent that they
dismiss Counts V, VI, VII, VIII, X, and any false arrest/imprisonment claim under

§

1983 against

to dismiss
Defendant Koczur, but shall deny Defendants’ Motions to the extent that they seek
Counts III, IV, and IX against Defendant Koczur.

18

B. Defendant Luby

1. Failure to State a Claim
Unlike his claims against Defendant Koczur, Plaintiff has not set forth sufficient factual
allegations to show that Defendant Luby violated a constitutional right or possessed the intent or
involvement necessary to establish any of Plaintiffs claims. The oniy allegations made against
Defendant Luby in Plaintiffs Complaint are that Defendant Luby took statements from McCall
that “were false and damaging to the Plaintiffs alibi,” and that he improperly interviewed two
witnesses simultaneously. (Cornpl.

¶ 43).

Outside of conclusory statements, Plaintiff does not

state that Defendant Luby: (1) was involved in Plaintiffs arrest or prosecution in any way as to
establish a duty to disclose exculpatory evidence; (2) was a supervisor or policy maker; or (3)
intentionally or knowingly fabricated or withheld evidence. At most, Defendant Luby’s alleged
failure to consider other evidence in interviewing McCall and to separate two witnesses during an
interview can be construed as the performance of an unsatisfactory investigation, which does not
rise to the level of violating Plaintiffs constitutional rights. Orsatti v. AJ. State Police, 71 F.3d
480, 484 (3d Cir. 1995) (stating that a law enforcement official’s negligent investigation is not
material to the determination of whether or not said official violated an individual’s
constitutionallyprotected rights); Mattis v. Vaughn, 128 F. Supp. 2d 249, 266 n.15 (E.D. Pa. 2001)
(explaining that a police officer’s knowledge of potentially exculpatory information that was
relevant to a murder trial did not give rise to a Brady obligation when the officer was not involved
or “acting on the government’s behalf’ in said murder trial) (quoting Kyles, 514 U.S. at 437).
Accordingly, the Court finds that Plaintiff has failed to state any claim against Defendant Luby.

19

2. Qualified Immunity
Even if the Court found that Plaintiffs allegations were sufficient to state a claim to relief,
qualified
Defendant Luby would nevertheless be entitled to qualified immunity. As stated above,
immunity is not applicable to claims under

§sS

1983, 1985, and the NJCRA if the alleged conduct

. See
violated a clearly established right that would have been apparent to a reasonable officer
F. Supp.
Walter, 544 f.3d at 191; see also Downev v. Coalition Against Rape & Abuse, Inc., 143
2d 423, 447 (D.N.J. 2001) (analyzing qualified immunity for claims underboth

§ 1983 and 1985).

n, (ECf
Similar to the determination regarding certain police defendants in the Court’s prior Opinio
against
No.66 at 2 1—22), it would be contradictory for the Court to find that Plaintiffs allegations
ded
Defendant Luby give rise to a violation of a “clearly established right” when it already conclu
in the
above that Plaintiff failed to show a constitutional violation committed by Defendant Luby
seek to
first place. Accordingly, the Court shall grant Defendants’ Motions to the extent that they
under
dismiss all claims against Defendant Luby for failure to state a claim or in the alternative
qualified immunity.
C. Defendant Union
facie
Though the Court’s prior Opinion found that Plaintiff can sufficiently state a prima
new
claim for NIED against Defendant Union, the Court’s holdings in this Opinion have created
public
circumstances whereby the Court must dismiss said claim. The NJTCA states that “[a]
ee within
entity is liable for injury proximately caused by an act or omission of a public employ
ual
the scope of his employment in the same manner and to the same extent as a private individ
public
under like circumstances.” N.J.S.A. 59:2-2(a). The NJTCA goes on to clarify that “[a]
where the
entity is not liable for an injury resulting from an act or omission of a public employee
public employee is not liable.” N.J.S.A. 59:2-2(b).

20

Here, the Court has already found that

le employees of Defendant
Plaintiffs NIED claim must be dismissed against all of the possib
ant Union cannot be held liable
Union, i.e., the police officer defendants, and therefore Defend
n, 657 F. Supp. 396, 404
under the plain language of the NJTCA. See Davis v. City’ of Camde
entity was entitled to immunity
(D.N.J. 1987) (citing N.J.S.A. 59:2-2(b) and finding that a public
ity). Furthermore, Plaintiffs
to the same extent that the public employee was entitled to immun
same reasons it is time-barred
NIED claim would be time-barred against Defendant Union for the
.a.
against Defendant Koczur as explained above, sicpra Section III.A.3
n, as the Court’s initial
This conclusion does not contradict the Court’s prior Opinio
potentially be liable for the
determination was based on the fact that Defendant Union could
Defendant Koczur, had not yet
negligence of the police officer defendants, some of whom, such as
n.3, 13, 21 n.5). Furthermore,
moved before or been analyzed by this Court. (ECF No. 66 at Ii
arred nor the date of Plaintiffs
neither the issue of whether Plaintiffs NIED claim was time-b
it decided the prior Opinion.
notice of claim filing were raised or provided to the Court when
ing the dismissal of all police
However, in light of the new circumstances described above includ
Court now concludes that it is
defendants and the finding that the NIED claim is time-barred, the
appropriate to dismiss Count VIII against Defendant Union.
D. Defendants Elizabeth & Elizabeth PD

1. l983&NJCRA
a. Defendant Elizabeth PD

be dismissed from this
As an initial matter, Defendant Elizabeth PD argues that it should
of his claims against Defendant
action because Plaintiffs claims against it are duplicative
Elizabeth. (ECF No. 89-3 at 22). In regard to Plaintiffs

§ 1983 and NJCRA claims, the Court

with municipalities, because the
agrees that “[p]olice departments cannot be sued in conjunction

21

police department is merely an administrative arm of the local municipality, and is not a separate
judicial entity.” Trajion, 799 F. Supp. 2d at 430 (quoting Padilta v. Tnp. of ClienT Hill, 110 F.
App’x 272, 278 (3d Cir. 2004)); see also Id. at 444 (applying same reasoning to NJCRA
claim). Because Defendant Elizabeth PD is an administrative ann of Defendant Elizabeth, which
is also a defendant in this case, Defendant Elizabeth PD is not a proper defendant as to Plaintiffs
claims under

§ 1983 and the NJCRA.

See Bonenberger v. Plymouth Tnp., 132 F. 3d 20, 25 (3d

Cir. 1997), Adams v. City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J. 2006) (granting summary
judgment as to municipal police department as an improper defendant because New Jersey police
departments are “an executive and enforcement function of municipal government”)
(quoting N.J.S.A. 40A:l4-118). Therefore, the Court dismisses Counts III, IV, and VI against
Defendant Elizabeth PD.
b. Defendant Elizabeth
As discussed above, a plaintiff must allege two elements to bring a

§ 1983 claim: (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. It has long been established that the principle of respondeat superior cannot be used to hold
a municipal or local government liable under

§ 1983. Monell, 436 U.S. at 694. Specifically, the

Supreme Court has stated that:
[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 under § 1983.
Id.

the decisionmaker
The Supreme Court has stated that il’ionell liability only attaches “where
t to the action ordered.”
possesses final authority to establish municipal policy with respec

to showing an unlawful or
Pembaur v. Cincinnati, 475 U.S. 469, 482 (1986). As an alternative
of improper conduct “where
improper policy, lionel/liability also applies to a defendant’s custom
force of law.” Hernandez v.
the relevant practice is so permanent and ‘widespread as to have the
Cir. 2003) (citing Bryan Ctv.
Borough of Palisades Park Police Dep ‘t, 5$ F. App’x 909, 912 (3d
v. Dubinon, 915 f.2d $45, $50
Comm ‘r v. Brown, 520 U.S. 397, 404 (I997)) see also Bielevicz
under the NJCRA. See Endt
(3d Cir. 2007) (analyzing same). This analysis also applies to claims
ions of ‘person’ under the
v. Ni, 5 F. Supp. 3d 689, 697 (D.N.J. 2014) (“In particular, the definit

[

o v. Balicki, 48$ F. App’x
1983 and NJCRA] have been interpreted in parallel.”) (citing Didian

634, 63$ (3d Cir. 2012)).
ant Elizabeth for the
As an initial matter, Counts III, IV, and V are brought against Defend

individual conduct of its police officer agents,2 (see Compi.

¶J

135—45), and same must be

Count VI which specifically
dismissed pursuant to the principles of lionell, 436 U.S. at 694. for
,

ant Elizabeth is vested with
asserts a Monell claim, Plaintiff has sufficiently alleged that Defend
ant Elizabeth PD, and that its
supervisory and policy making authority over the officers of Defend
d in a pattern or practice that
failure to train, supervise, and discipline its subordinates resulte
in this case. (Compi.
condones the kind of allegedly improper conduct which occurred

¶J

14$—

policy or custom of Defendant
52). Nevertheless, Plaintiff has failed to direct the Court to any
allegedly improper behavior.
Elizabeth or any of the named institutional defendants condoning this
(See Compi.

¶J

146—58).

“other
Moreover, Plaintiffs speculative allegation that there were

instances” of similar violations, (Compl.

2

eth
¶ 46), is not sufficient to show that Defendant Elizab

ants in this case, i.e., Defendants Rubin and Furda,
As explained below, infra Section HI.E.l, the prosecutor defend
State.
were not agents of Defendant Elizabeth but rather were agents of the

23

was aware of the kind of systemic violation required for a Monet! claim. See Bietevicz, 915 F.2d
at 851 (explaining that Monet! liability attaches when “policyrnakers were aware of similar
unlawful conduct in the past, but failed to take precautions against future violations, and that this
s
failure, at least in part, led to their injury.”). Therefore, the Court shall grant Defendants’ Motion
to the extent that they seek to dismiss Counts III, IV, V, and VI against Defendant Elizabeth.
2. Tort Claims
a. Intentional
As to Counts VII, IX, and X, the Court’s prior Opinion already analyzed that a public
entity, such as Defendants Elizabeth and Elizabeth PD. may not be held liable for intentional torts
734,
allegedly committed by its employees. See Panaretto v. Cliv of ?netand, 160 F. Supp. 3d
a
767 (D.N.J. 2016); Solo v. CTh; ofNewark, 72 F. Supp. 2d 489, 497 (D.N.J. 1999) (holding that
public entity may not be held liable for the intentional torts of a public employee) (citing
McDonottgh v. Jorda, 214 N.J. Super. 338, 350 (App. Div. 1986)). Accordingly, these Counts
must be dismissed against Defendants Elizabeth and Elizabeth PD.
b. Negligence
For reasons identical to those in the Court’s determination of Count VIII against Defendant
eth
Union above, supra Section III.C, the Court must dismiss Count VIII against Defendants Elizab
ees
and Elizabeth PD, as said claim was: (I) dismissed against all possible police officer employ
the
of Defendants Elizabeth and Elizabeth PD; and (2) found to be time-barred. In conclusion,
eth
Court shall grant Defendants’ Motions as to all of Plaintiffs claims against Defendants Elizab
and Elizabeth PD.

24

E. Defendants Rubin & Furda

1. Official Capacity

1983 and the NJCRA Claims

In suits against a defendant in his or her official capacity, the only immunities that are
available “are forms of sovereign immunity that the entity, qua entity, may possess, such as the
Eleventh Amendment.” Ky. v. Graham, 473 U.S. 159, 167 (1985) (analyzing suit brought under

§ 1983); see also Brown v. State, 442 N.J. Super. 406, 426 (App. Div. 2015) (“Given that the
Legislature did not choose to include an express waiver of sovereign immunity in the [NJCRA]
and that the State enjoys immunity under the analogous

§ 1983, we conclude that the State is

immune from a suit for damages under the {NJCRA].”), rev ‘don other grounds, 230 N.J. 84, 90
(2017).

The well-recognized doctrine of sovereign immunity, embodied in the Eleventh

Amendment to the United States Constitution, provides that the States are immune from suit in
federal court. See, e.g., Alden v. Maine. 527 U.S. 706. 712—13 (1999); WV/i’. Mich. Dep’t ofState
Police, 491 U.S. 58, 70—71 (1989). Sovereign immunity is not limited to the State itself, but rather
extends to state agencies and state officers who act on behalf of the State. Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429 (1997).
Pursuant to the law in this Circuit, “[w]hen county prosecutors engage in classic law
enforcement and investigative functions, they act as officers of the State.” Coleman v. Kaye, 87
f.3d 1491, 1505 (3d Cir. 1996), abrogated on other grounds, Mince v. City of Newark, 501 F.
App’x 123, 129 n.7 (3d Cir. 2012); see also Banda v. Burlington Uv., No. 03-2045, 2006 WL
2739718, at *4 (D.N.J. 2006) (explaining that “several courts [in this District] have held that New
Jersey county prosecutors’ offices are entitled to Eleventh Amendment immunity from suits
arising out of the exercise of prosecutorial powers”). Alternatively, when a county prosecutor is
engaged in administrative functions “unrelated to the duties involved in criminal prosecution,”

25

such as the promotion of employees, said prosecutor is acting as a local or county official and is
not entitled to sovereign immunity. Coleman, 87 F.3d at 1506.
In the current case, the Court finds that the alleged conduct of Defendants Rubin. who
represented the state in the murder case against Plaintiff and presented witnesses during said trial,
and Defendant Furda, who took statements from McCall and testified before the Grand Jury,
clearly relates to “classic law enforcement and investigative functions.” See, e.g., Woodyard v.
Civ. of Essex, 514 F. App’x 177, 182 (3d Cir. 2013) (holding that defendant was entitled to
sovereign immunity against claims that it arrested, detained and prosecuted plaintiff without
probable cause).

In response, Plaintiff again misconstrues his arguments under sovereign

immunity and instead cites to case law related to absolute prosecutorial immunity, which is
discussed below. (See ECF No. 97 at 11—20). Nevertheless, because the Court finds it clear that
Defendants Rubin and Furda were acting as agents of the State, they are entitled to sovereign
immunity, and Counts III, IV, V, and VI against them in their official capacities must be dismissed.
2. Individual Capacity
a.

1983, 1985, and NJCRA Claims

Absolute Prosecutorial Immunity

It is well settled that “a state prosecuting attorney who act{sj within the scope of his duties
in initiating and pursuing a criminal prosecution” is not amenable to suit. Imbter v. Pachtman,
424 U.S. 409, 410 (1976). The Supreme Court held that a prosecutor is absolutely immune from
actions that are “intimately associated with the judicial phase of the criminal process” while
functioning as an advocate for the State.

Id. at 43 0—3 1; see also Moore v. Middlesex Ccv.

Prosecutor’s Of/ice, 503 F. App’x 108, 109 (3d Cir. 2012) (“Although a prosecutor’s deliberate
destruction of exculpatory evidence is not entitled to absolute

immunity,

the decision to withhold

such evidence from the defense while functioning as an advocate for the State is protected by

26

“absolute immunity applies
absolute immunity.”). Since Inthier, the Supreme Court has held that
s in court to present evidence
when a prosecutor prepares to initiate ajudicial proceeding, or appear
555 U.S. 335, 343 (2009)
in support of a search warrant application.” Van de Kamp v. Goldstein,
taken in an investigative or
(citations omitted). On the other hand, a prosecutor’s actions that are
See Kuiwicki v. Dawson,
administrative capacity may be protected by qualified immunity only.
465 f.3d 129, 138 (3d Cir.
969 f.2d 1454, 1463 (3d Cir. 1992); see also Yarns v. Cty. of Del.,
ce made after conviction
2006) (reasoning that the handling of a request for scientific test on eviden
”) (quotations and citations
may “be best described as part of the prosecutor’s administrative duties.
Simmons v. Roxbun’ Police
omitted). This analysis also applies to claims under NJCRA. See
*11 (D.N.J. Nov. 9, 2017) (applying absolute
Dep’t, No. 17-2526, 2017 WI 5188060, at
prosecutorial immunity to a plaintiffs NJCRA claim).
s before the jury
Here, Defendant Rubin allegedly pursued “mutually exclusive” theorie
s, who Defendant Rubin
during Plaintiffs murder trial and presented Johnson as a witnes
l.
supposedly should have known was a confidential informant. (Cornp

¶ 3 8—39, 44).

were
Furda allegedly took statements from McCall that he “should have known

Defendant

false and damaging

an indictment against Plaintiff.
to the Plaintiffs alibi” and testified before the Grand Jury to secure
(Compl.

¶JJ 42—43).

1, 24—26),
Despite Plaintiffs arguments to the contrary, (ECF No. 97 at 11—2

and securing an indictment
Defendant Rubin and furda’s conduct representing the state at trial
n.” Munchinski v. Solomon,
from the Grand Jury constitutes “the core of the prosecutorial functio
entitled to absolute immunity
61$ F. App’x 150, 154 (3d Cir. 2015) (holding that a prosecutor was
ce in determining whether
from the plaintiffs claim that the prosecutor ignored inconsistent eviden
F. App’x 121, 124 (3d Cir. 2007)
there was probable cause for his arrest); see also Ray v. Ni, 219

27

indictment and to
(explaining that prosecutorial immunity also extends to decisions to seek an
preparations for a grand jury) (citations omitted).
ed out of
To the extent that Defendants Rubin and F urda’s alleged conduct was perform
nevertheless in
court, such as Defendant Furda’s interview of McCall, said conduct was
preparation for the criminal proceedings against Plaintiff. See Burns

i’.

Reed, 500 U.S. 478, 485

State involve actions
(1991) (“the duties of the prosecutor in his role as advocate for the
om.”) (quoting
preliminary to the initiation of a prosecution and actions apart from the courtro
300 (3d Cir. 2006)
Imbler, 424 U.S. at 431 n.33); see also Jerrvtone v. Musto, 167 F. App’x 295,
(“[p]rosecutors enjoy absolute immunity.
and for failure to conduct [an] adequate

.

.

for evaluation of evidence collected by investigators,

investigation

before filing charges.”) (internal citations

utorial
omitted). Therefore, Defendants Rubin and Furda are entitled to absolute prosec

immunity,

dismissed.
and Counts III, IV, V, and VI against them in their individual capacities must be
b. Qitali/led Imrnttnitp
ants Rubin
Although the Court finds that absolute prosecutorial immunity applies to Defend
and Furda are
and Furda, it will also address the alternative possibility that Defendants Rubin
a district court
protected by qualified immunity. See Yarns, 465 F.3d at 140 (noting that when
be helpful for the
determines whether a prosecutor is immune from a civil rights claim, it would
te and qualified
purposes of a potential appeal if that district court were to address both absolu
apply to Plaintiffs
immunity in the first instance). As stated above, qualified immunity does not
utional or statutory
claims if the alleged conduct “violated a clearly established principle of constit
reasonable official.”
law” and “the unlawfulness of the action” was “apparent to an objectively
I’Valter, 544 F.3d at 191 (internal quotations and citation omitted).

2$

tation of
As discussed above, Plaintiff alleges that Defendants Rubin and Furda’s presen
informant
misleading evidence and failure to disclose that one of their witnesses was a police
violated Plaintiffs rights. (Compi.

¶J

135—143). However, Plaintiffs Complaint does not allege

or that they
that Defendants Rubin and furda intentionally elicited evidence they knew to be false
99 F. App’x
acted “in bad faith or with an improper motive.” Bowser v. Borough of freehold,
seniority and
401,404 (3d Cir. 2004). Rather, Plaintiff alleges that Defendant Rubin, based on her
ant, because
expertise as a proseccttor, should have deduced that Johnson was a confidential inform
was never
Johnson’s criminal record reflected that Johnson had been arrested numerous times but
convicted. (Compi.

¶ 39).

Similarly, Plaintiff alleges that Defendant Furda took statements from

false and that
McCall and presented evidence to the Grand Jury that he should have realized was
undermined Plaintiffs alibi. (Compi.

¶J 42—43).

“clearly
These allegations, without more, are not sufficient to show the violation of a
215 (3d Cir.
established constitutional right.” Mierzwa v. City of Ga;jIetd, 170 F. App’x 212,
ed immunity
2005) (affirming the district court’s conclusion that a prosecutor was entitled to qualifi
ying the criminal
from the plaintiffs claim that the prosecutor mishandled the investigation underl
781, 789 n.5
charges that were brought against the plaintiff); see also Wilson v. Russo, 212 F.3d
not deny a
(3d Cir. 2000) (stating that an unsatisfactory or even negligent investigation does
Furda are
defendant entitlement to qualified immunity). Accordingly, Defendants Rubin and
entitled to qualified immunity.
3. Tort Claims
ants Rubin
To the extent that any of Plaintiffs common law causes of action against Defend
eless immune
and Furda are not dismissed under the analysis above, these defendants are neverth
ee is not
from suit under the NJTCA. Specifically, the NJTCA provides that “[a] public employ

29

liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding
within the scope of his employment.” N.J.S.A. 59:3-8. This provision is qualified to the extent
that “this act shall [not] exonerate a public employee from liability if it is established that his
conduct was outside of the scope of his employment or constituted a crime, actual malice or willful
misconduct.” N.J.S.A. 59:3-14(a). As the Court already found above, Defendants Rubin and
furda were acting within their roles as prosecutors in relation to the conduct alleged by Plaintiff
in his Complaint and did not intend to withhold information or elicit evidence that they knew to be
false. Therefore, the

immunity

provided in the NJTCA applies to Plaintiffs common law claims

against Defendants Rubin and Furda.3 Accordingly, Defendants’ Motions are granted to the extent
that they seek to dismiss all of Plaintiffs claims against Defendants Rubin and Furda.
IV.

CONCLUSION

For the aforementioned reasons, the Court hereby grants Defendants’ Motions to the extent
that they seek to dismiss: (1) all claims against Defendants Luby, Union, Elizabeth, Elizabeth PD,
Rubin, and Furda: and (2) Counts V, VI. VII, VIII, X, and any

§ 1983 claim for false

arrest/imprisonment against Defendant Koczur. However, the Court hereby denies Defendants’
Motions to the extent that they seek to dismiss Counts III, IV, and IX against Defendant Koczur.
An appropriate Order follows this Opinion.

Dated: May f41/’ 2019.
JO$.E L. L NARE
Chief Judge, United States District Court

Though Defendant Koczur does not address immunity under the NJTCA in his briefs, the Court nevertheless notes
that this analysis may not apply to Plaintiffs common law claims against Defendant Koczur because Defendant
Koczur allegedly acted outside the scope of his employment and/or with “willful misconduct” by fabricating
evidence against Plaintiff. See N.J.S.A. 59:3-14(a).

30