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

Filing 66

OPINION. Signed by Chief Judge Jose L. Linares on 11/5/2018. (ld, )

NOT FOR PUBLICATION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, eta!.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of the Motions to Dismiss Plaintiff Duquene
Pierre’s Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). filed by Defendant
County of Union (“Union”), and Defendants Robert Baer, Edward Johnson, William Kolano,
Edward Neafsey, State of New Jersey, Treasury Department (“Treasury”), and Union County
Prosecutor’s Office. (ECF Nos. 14, 33). Additionally, Defendants William McCue and David
Derosa filed separate Motions for Judgment on the Pleadings, pursuant to Federal Rule of Civil
Procedure 12(c) (collectively with the abovementioned motions to dismiss, “Defendants’
Motions”). (ECF Nos. 46, 49). Plaintiff opposed Defendants’ Motions. and all Defendants, except
for Defendant DeRosa, replied thereto. (ECF Nos. 28, 45, 47, 51, 53). 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 parts of Defendants’ Motions
seeking to dismiss PlaintifPs Mistaken Imprisonment Act claim against Defendant Treasury and
negligent infliction of emotional distress claim against Defendant Union.

I.

BACKGROUND’

On March 19, 1994, Plaintiff and his friend allegedly left New Jersey on a road trip to
Florida in Plaintiffs Acura Legend. (Compi.

¶

34). At approximately 11:34 p.m. that night,

Plaintiff was supposedly pulled over and received a speeding ticket in South Carolina. (Compi.

¶

34). According to Plaintiff, “[t]he ticket clearly stated the date, time and location of the traffic
offense, and that [Plaintiff] was the driver and owner of the vehicle.” (Compi.

¶ 34).

At about

1:30 a.m. on March 20, 1994, Plaintiff and his friend checked into a motel in Georgia, where
Plaintiffs friend filled out the motel registration card. (Cornpl.

¶ 34).

On the morning of March

20, 1994, the pair continued to travel south until they reached Florida, where Plaintiff claims they
stayed for approximately one week with Plaintiffs relatives. (Compl.

¶

36). During his trip,

Plaintiff made about seven calls to his girlfriend who lived in Elizabeth, New Jersey, including
one on the afternoon of March 19, 1994 from a location in Virginia, one several hours later from
a location in South Carolina, and five additional calls made over the next few days from a location
in Florida. (Compl.
(Compl.

¶ 36).

These calls were documented in Plaintiffs girlfriend’s telephone bills.

¶ 36).

At approximately 3:00 a.rn. on March 20, 1994, there was a shooting in Elizabeth, New
Jersey, more than 790 miles away from the motel Plaintiff allegedly checked into less than two
hours earlier. (Cornpl.

¶ 35,

56). As a result of the shooting, a man was killed, and another was

injured. (Cornpl. ¶ 35). According to Plaintiff, Elizabeth Police Officer Thomas Koczur suspected
that Plaintiff was involved in the crime, because his Haitian ethnicity matched a description of the
shooter. (Compl.

¶ 37;

40). Plaintiff claims that Officer Koczur further suspected him because

This background is derived from Plaintiffs Complaint, (ECf No. 1 at Ex. A (“Compl.”)), which the Court must
accept as true at this stage of the proceedings. See 1lston v. Countmricle fin. Coip.. 585 F.3d 753. 758 (3d Cir.
2009). Though several individuats described below are defendants in this case, the Court refers to an individual as
“Defendant” only if that party is involved in the current motions pending before the Court to avoid confusion.
7

Plaintiff drove a similar model car as one observed at the shooting. (Compi.

¶ 37).

Based on these

suspicions, Officer Koczur allegedly coerced Mr. Lamar McCall, a man charged in connection
with the shooting, to make false statements regarding Plaintiffs location at the time of the
shooting. thereby implicating Plaintiff and discrediting his alibi defense. (Compl.

¶]

37, 43).

Plaintiff claims that Officer Koczur should have known that these statements were false because
they “bore no relation to the events that had been reported by the numei-ous eyewitnesses
immediately after the [shooting].” (Compi.

¶ 37).

In exchange for this allegedly false information,

Assistant Prosecutor Defendant Kolano arranged a plea agreement for Mr. McCall. (Compl.

¶ 43).

Assistant Prosecutor Defendant Baer then allegedly secured search warrants based on
“unreliable and untrue evidence.” (Compl.

¶

37). Upon searching Plaintiffs car, the police

allegedly found the speeding ticket he received in South Carolina and a receipt for a parking lot in
Miami, Florida.

(Compl.

¶ 65—66).

Plaintiff also claims that he provided the police with

permission to search his apartment, which he shared with his girlfriend. (Cornpl.

¶ 67).

Plaintiffs

girlfriend told the police that Plaintiff was on a trip to Florida at the time of the shooting, and
allegedly provided them with her telephone bills which documented the calls Plaintiff made to her
during his trip to Florida. (Compl.

¶]

67—68). Despite the evidence supposedly showing that

Plaintiff was not in New Jersey at the time of the shooting, law enforcement officials proceeded to
investigate and prosecute Plaintiff. (Compl.

¶ 69).

According to Plaintiff, Defendant Baer and Union County Prosecutor’s Office Investigator
John Furda secured an indictment against Plaintiff by presenting false or misleading statements to
the Grand Jury to make it appear that Plaintiff was not traveling oLttside of New Jersey at the time
of the shooting. (Compl. ¶1 42). Specifically, Defendant Baer and Investigator Furda allegedly
misrepresented the height of the South Carolina State Trooper who pulled Plaintiff over and the

‘l

j

statement of the Georgia motel’s employee to discredit Plaintiffs alibi. (Compi.

¶ 42).

After he

was indicted by the Grand Jury, Plaintiff was arrested on April 1 5, 1 994 and charged with the
above-mentioned murder. (Compl.

¶ 37, 42).

Assistant Prosecutor Ann Rubin prosecuted the case against Plaintiff at trial, and Plaintiff
was represented by Thomas J. Butler, Esq., who was associated with the Law Office of David
Conti. (Compi.

¶J 39, 97—98).

More than 300 days after the shooting, Union County Prosecutor’s

Office Lieutenant Defendant Johnson approached two eyewitnesses in preparation for trial, who
both selected Plaintiff as the shooter out of a photo array. (Compl.

¶ 40).

In eliciting the selection

of Plaintiffs photo, Defendant Johnson allegedly failed to follow procedures aimed at reducing
the risk of misidentification, such as informing the eyewitnesses that the shooter may not be present
in the photo array. (Compi.

¶ 40).

Defendant Johnson also allegedly failed to realize that one of

the witnesses’ statements was inconsistent with the statement that witness made to the police at
the time of the shooting. (Compl. ¶40). Specifically, Plaintiff claims the witness told Defendant
Johnson that the shooter had a Haitian accent and that he would be able to identify the shooter, but
that same witness told the police on the day of the crime that the shooter did not have an accent
and that he would not be able to identify the shooter. (Cornpl.

¶ 40).

Defendant Johnson would

later testify that he was not aware that the witness made the earlier statement. (Cornpl.

¶ 40).

Throughout the trial, Assistant Prosecutor Rubin allegedly “pursued alternate theories and
motives surrounding the murder, which were mutually exclusive.” (Cornpl.

¶

44). Assistant

Prosecutor Rubin also presented a witness who testified that she saw Plaintiff in Elizabeth, New
Jersey a few hours after the shooting. (Compl.

¶f

38—39). This witness was actually a police

informant and was allegedly persuaded by Officer Koczur to offer false
discredit Plaintiffs alibi defense. (Compl.

¶ 38).
4

testimony

in order to

Plaintiff claims that it would have been evident

to a seasoned prosecutor such as Assistant Prosecutor Rubin that this witness was a police
informant, because the witness’s criminal record reflected that she had been arrested numerous
times but was never convicted. (Compi.

¶ 39).

Plaintiff further states that “[t]his police informant

was also known to [Elizabeth Police Officers] Defendants Derosa and McCue, and these
defendants did in fact work with this informant in the past, yet never disclosed this information to
Plaintiff during the pendency of his criminal matter.” (Compi. ¶ 38). As a result of the Defendants’
alleged failure to disclose this information, Plaintiff was not aware that the witness was a police
informant during the trial, which Plaintiff claims would have beeii pertinent evidence to show that
the witness was biased. (Compi.

¶ 39).

At the conclusion of the trial, the jury found Plaintiff guilty of murder and other offenses
related to the Mai-ch 20, 1994 shooting, and he was eventually sentenced to a 60-year state prison
tenm (Compi.
(Compl.

¶

¶J 44,

70). Plaintiff spent the next “22 years, 2 months, and 23 days” in prison.

51). During his incarceration, Plaintiff engaged in “every avenue of legal recourse,”

and eventually had his petition heard by the New Jersey Supreme Court. (Compl.

¶

44). On

December 1 7, 201 5, the New Jersey Supreme Court found that Mr. Butler “did not call important
alibi witnesses and failed to present crucial evidence establishing [Plaintiffs] innocence,” thereby
denying Plaintiff effective assistance of counsel. (Compl.

¶J 44—45).

The New Jersey Supreme

Court accordingly reversed Plaintiffs conviction and granted him a new trial. (Compl.
Plaintiffs second trial occurred in June 2016. (Cornpl.

¶ 45).

¶ 71).

At the second trial, the two

eyewitnesses that Defendant Johnson previously approached “admitted that they had merely
guessed when they selected [Plaintiffs photo from the] photo arrays.”

(Compl.

¶

45).

Additionally, after inquiring to the assistant proseccttor retrying the case, Plaintiffs new defense
counsel confirmed that the witness presented by Assistant Prosecutor

5

Rubin

in the initial trial was

a police informant. (Compi.

¶ 39). On July 8, 2016, the state court granted Plaintiffs motion for

ajudgment of acquittal after the prosecution conceded that there were no other witnesses that could
place Plaintiff at the scene of the crime. (Compl.

¶J 75).

Plaintiff alleges that he was wrongfully incarcerated for over 22 years because the
individual defendants discussed above: (1) manufactured misleading and false evidence; (2) knew
that one of their witnesses was a police informant and failed to disclose same in violation of the
constitutional principles established in Brady v. Maryland, 373 U.S. 83, 87 (1963); and (3) engaged
in a custom or practice of permitting and facilitating unlawful arrest and prosecutions “in this
instance, and in other instances.” (Cornpl

¶ 41, 46, 83—84).

Accordingly, Plaintiff brought this action to recover compensatory damages, alleging a
claim against Defendant Treasury pursuant to the Mistaken Imprisonment Act, N.J.S.A. 52:4C-l
ci’ seq. (“Count 1”), and a claim against Mr. Butler and others who represented Plaintiff during his
initial trial for Professional Negligence/Breach of Responsibility (which is listed as Count 11).
(Compl.

¶ 49—132). Plaintiff also alleges the following causes of action against the 1-emaining

Defendants: Violation of the New Jersey Civil Rights Act (“NJCRA”) and New Jersey
Constitution (“Count III”); Violation of 42 U.S.C.
of 42 U.S.C.

§ 1983 (“Count IV”); Conspiracy in Violation

§ 1985 (“Count V”); Unlawfttl Policy, Practice, or Supervision under Monelt i. Dep ‘t

of Soc. Sen’s. of I’LYC., 436 U.S. 658, 694 (1978) (“Count VI”): Common Law Intentional
Infliction of Emotional Distress (“Count VII”); Common Law Negligent Infliction of Emotional
Distress (“Count VIII”); Common Law Malicious Prosecution (“Count IX”); and Common Law
Abuse of Process (“Count X”). (Cornpl.

¶ 133—75).

6

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.”
Ashcrofl v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bet! At!. Coip. v. Twombly, 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 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 Twombty, 550 U.S. at 556).
To determine the sufficiency of a complaint under Twombly and Iqba/ in the Third Circuit,
the Court must take three steps. “First, it must tak[e] note of the elements [the] plaintiff must plead
to state a claim.

Second, it should identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth. Finally, [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. Corp., 809 F.3d 780, 787
(3d Cir. 2016) (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).
B. Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c); see also Liberty hit ‘1 Underwriters &inada

7

v. Scottsdale Ins. Co., 955 F. Supp. 2d 317, 323 (D.N.J. 2013) (“The pleadings are considered to
be closed’ after the complaint and answer have been filed, along with any reply to additional
claims asserted in the answer.”) (citation omitted). When a party makes a motion for judgment on
the pleadings based on the defense of failure to state a claim, similar to Defendants McCue and
Derosa in this case, (see generally ECF Nos. 46, 49), the Court “appl[ies] the same standards as
under Rule 12(b)(6).” See Turbe v. Gov o/ Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991): see
also Caprio v. Healthcare ReventteRecoven’ Gip., LLC, 709 F.3d 142, 146 (3d Cir. 2013) (stating
same).
III.

ANALYSIS

For judicial efficiency and clarity, the Court shall group the Defendants based on their
similar arguments. The Court shall first discuss the claims against Defendant Treasury, and then
the claims against Defendant Union.

The Court will then address the claims against the

“Prosecutor Defendants,” which includes Defendants Union County Prosecutor’s Office, Neafsey
in his official cal)acity as the Union County Prosecutor, Baer, Kolano, and Johnson.2 Finally, the
Court will discuss the “Police Defendants,” which incorporates Defendants McCue and Derosa.
As discussed further below, the Court shall dismiss all of Plaintiffs claims against these
Defendants, with the exception of Count I against Defendant TreasLiry and Count VIII against
Defendant Union.
A. Defendant Treasury

Count I of Plaintiffs Complaint is brought solely against Defendant Treasury. (See Compl.

¶J 49—8 7). Furthermore, Plaintiff does not assert any other claims against Defendant Treasury.

2

Plaintiff does not assert that Defendant Neafsey was personally involved in any of the allegations in the Complaint.
and therefore the Court finds that there are no claims against Defendant Neafsey in his individual capacity for the
Court to analyze.

$

(See generally Compi.). To state a claim under the Mistaken Imprisonment Act, Plaintiff must
allege:
That he was convicted of a ctime and subsequently sentenced to a
term of imprisonment, served all or any part of his sentence; and
He did not commit the crime for which he was convicted; and
He did not commit or suborn perjury, fabricate evidence, or by his
own conduct cause or bring about his conviction. Neither a
confession or admission later found to be false shall constitute
committing or suboming perjury, fabricating evidence, or causing
or bringing about his conviction under this subsection; and
He did not plead guilty to the crime for which he was convicted.
N.J. $ .A. 52 :4C-3 (paragraph numbering omitted).
Here, Plaintiff alleges that he: (i) was convicted for a murder that he did not commit, (ii)
was imprisoned for over 22 years prior to being retried and acquitted, and (iii) did not plead guilty.
(See generctlly Compl.). As for the third element, there is no allegation that Plaintiff committed
perjury. Plaintiff also alleges that there was substantial evidence showing that he was innocent,

including but not limited to the ticket he received in South Carolina and the telephone bills
documenting his out of state calls to his girlfriend. (Compl.

¶ 68—69).

When accepting these

allegations as true at this early stage of the litigation, the Court concludes that Plaintiff has
sufficiently met the elements necessary for a prinict Jade claim ttnder the Mistaken Imprisonment
Act. Defendants do not seem to challenge this conclusion, as Defendants’ Motions do not include
a single argument regarding Count I or Defendant Treasury. (See generally ECF No. 14 (motion
naming Defendant Treasury as a movant)). Accordingly, the Court finds that Count I against

Defendant Treasury may proceed. and the parts of Defendants’ Motions seeking to dismiss same
are denied.

9

B. Defendant Union

L Federal Claims
Pursuant to

§ 1983,

Every person who, under color of any statute, ordinance, regulation,
subjects, or causes to
custom, or usage, of any State or Ten-itory
subjected. any citizen of the United States or other person within
be
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:

(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 cinder color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Penns’Ti’anict, 36 f.3d 1250, 1255—56 (3d Cir. 1994).
It has long been established that the principle of
hold a municipal or local government liable under

responded

superior

cannot be used to

§ 1983. Alone/i, 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 Supreme Court has stated that Monett liability only attaches “where the decisionmaker
possesses tinal authority to establish municipal policy with respect to the action ordered.”
Pembaur v. Cincinnati, 475 U.S. 469, 482 (1986). As an alternative to showing an unlawful or
improper policy. Alone/i liability also applies to a defendant’s custom of improper conduct “where

10

the relevant practice is so permanent and ‘widespread as to have the force of law.” Hernande: v.
Borough ofPctlisades Park Police Dep ‘t, 58 F. App’x 909, 912

(3d

Cir. 2003) (citing Bryan Cty.

Comm ‘r v. Brown, 520 U.S. 397, 404 (1997)); see also Bielevicz v. Dubinon, 915 F.2d $45, 850

(3d Cir. 2007) (analyzing same).
As an initial matter, Counts IV and V are brought against Defendant Union for the
135—45), and same must be dismissed pursuant

individual conduct of its agents,3 (see Cornpl.

to the principles of Monell, 436 U.S. at 694. For Count VI which specifically asserts a Monell
,

claim, Plaintiff has sufficiently alleged that Defendant Union is vested with supervisory and policy
making authority over the officers of the Elizabeth Police Department, and that its failure to train,
supervise, and discipline its subordinates resulted in a pattern or practice that condones the kind
of allegedly improper conduct which occurred in this case. (Compl.

¶J 148—52). Nevertheless,

the Court finds that Plaintiffs allegations are insufficient to state a Monell claim, as Plaintiff does
not direct the Court to a particular policy of Defendant Union or any other policymaker condoning
this allegedly improper conduct. (See Compl.

¶ 146—58). Furthermore, Plaintiffs speculative

allegation that there were “other instances” of similar violations, (Cornpl.

¶ 46), is not sufficient

to show that Defendant Union was aware of the kind of systemic violation required for a Monell
claim.

See Bielevic:. 915 F.2d at $51

(explaining that ilionell liability attaches when

“policymakers were aware of similar unlawful conduct in the past, but failed to take precautions
against future violations, and that this failure, at least in part, led to their injury.”). Therefore, the
Court finds that Counts IV, V, and VI against Defendant Union must be dismissed.

While the Court finds it appropriate based on Plaintiffs allegations to assume at this early stage of the litigation that
at least some of the Elizabeth Police Officers named as defendants were acting as agents of Defendant Union, the
Court notes that the Prosecutor Defendants were acting as an arm of the State. as explained below, infrci III.C.1, and
were not agents of Defendant Union. See Halsey v. Pf4ffer, Civil Action No. 09-1138. 2010 WE 1611379, at *2
(D.N.J. April 20, 2010) (reasoning that the County of Union has a “potentially” significant degree of control or
responsibility over local detectives and police officers, but it “may” not supervise the prosectitor’s office).

11

2. NJCRA Claim
In addition to bringing claims under

§ 1983, Plaintiff also asserts Count III against

Defendant Union 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. Office 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.”

§

Trafion v. CTh’ of Woodlmn’, 799 F. Supp. 2d 417, 443—44 (D.N.J. 2011); see also

Chapman v. NJ, Civil Action 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. Shermctn, Civil Action 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.”); EncIl v.

iMi,

SF. Supp. 3d 689, 697 (D.N.J. 2014) (“In particular, the definitions

of ‘person’ under the two statutes have been interpreted in parallel.”) (citing Didiano

i.

Balicki.

488 F. App’x 634, 638 (3d Cir. 2012)). Consistent with these principles, the Court finds that its
above analysis that a local government cannot be held liable for the individual conduct of its
subordinates, sttpra III.B.l, applies to Plaintiffs NJCRA claim. Because Count III alleges a claim
against Defendant Union based on the individual conduct of its supposed agents, similar to Counts
IV and V, said Count against Defendant Union must be dismissed.
3. Tort Claims
a. Intentional Torts
Plaintiff also asserts the remaining common law claims against Defendant Union, including
but not limited to intentional infliction of emotional distress (Count VII), malicious prosecution

12

(Count IX), and abuse of process (Count X). (See generally Compl.). However, a public entity
may not be held liable for intentional torts allegedly committed by its employees. See Panarello
i.

City of Vine/and, 160 F. Supp. 3d 734, 767 (D.N.J. 2016); Soto v. CTh’ ofNeuctrk, 72 F. Supp.

2d 489, 497 (D.N.J. 1999) (holding that a pttblic entity may

not

be held liable for intentional torts

ofa public employee) (citing McDonottgh v. Jorclct, 214 N.J. Super. 338, 350 (App. Div. 1986)).
Because Defendant Union is a public entity, and Counts VII, IX. and X against Defendant Union
are intentional torts, same must be dismissed.
b. Negligence

Finally, the Court finds that Count VIII against Defendant Union can survive at this stage
of the proceedings. In New Jersey, the direct tort of negligent infliction of emotional distress is
“understood as negligent conduct that is the proximate cause of emotional distress in a person to
whom the actor owes a legal duty to exercise reasonable care.” Decker v. Princeton Packet, Inc.,
116 N.J. 418, 429 (1989). The following elements are required for Plaintiff to show aprimafitcie
claim of negligent infliction of emotional distress: (1) the defendant had “a duty of reasonable
care” to the plaintiff; (2) the defendant breached said duty: (3) the “plaintiff suffered severe
emotional distress”; and (4) the breach proximately caused the plaintiffs injury. See Dc/b Russo
v. Nagel, 358 N.J. Super. 254, 269 (App. Div. 2003).

Here, Plaintiff has alleged that: (1) the Defendants in this case owed a duty not to violate
Plaintiffs rights; (2) members of the Elizabeth Police Department, who were allegedly agents of
Defendant Union, along with various prosecutors, including the Prosecutor Defendants, performed
their investigation and prosecution in a way that may have constituted negligence; and (3) this
allegedly improper investigation directly and proximately caused Plaintiff to be incarcerated for
over 22 years and suffer severe mental anguish until this day.

13

(Compi.

¶J 163—64). When

accepting these allegations as true at this early stage of the litigation, Plaintiff has sufficiently pled
the elements necessary for a prima fade claim of negligent infliction of emotional distress.
Therefore, Count VIII shall not be dismissed against Defendant Union.
C. Prosecutor Defendants

1. Official Capacity

1983 and 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, qtta 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 Civil Rights
Act and that the State enjoys immunity under the analogocts

§ 1983, we conclude that the State is

immune from a suit for damages under the Civil Rights Act.”), rev ‘d on other grounds, 230 N.J.
84, 90 (201 7). 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); Will v. 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.

i’.

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 grottnds, Nance v. City of Newark, 501 F.
App’x 123, 129 n.7 (3d Cir. 2012); see also Banda v. Burlington Cty., Civil Action No. 03-2045,
2006 WL 2739718, at *4 (D.N.J. 2006) (explaining that “several courts [in this District] have held

14

that New Jersey county prosecutors’ offices are entitled to Eleventh Amendment immunity from
suits arising out of the exercise ofprosecutorial powers”). Alternatively, when a county prosecutor
is engaged in administrative functions “unrelated to the duties involved in criminal prosecution,”
such as the promotion of employees, said prosecutor is acting as a local or county official and is
not entitled to sovereign immunity. Cotemctn, $7 F.3d at 1 506.
In the current case, the Court finds that the alleged conduct of the Prosecutor Defendants,
which includes among other things seeking an indictment and presenting witnesses at trial, clearly
relates to “classic law enforcement and investigative functions.” See, e.g., Woodyard v. Cly. of
Essex, 514 F. App’x 177, 182 (3d Cir. 2013) (holding that defendant was entitled to sovereign
immunity against claims that it alTested, detained and prosecuted plaintiff without probable cause).
Though Plaintiff argues that the Prosecutor Defendants were acting in “administrative and
investigative roles.” he does not support his argument with any case law related to sovereign
immunity. (See ECF No. 2$ at 21). Instead. Plaintiffs arguments pertain to absolute prosecutorial
immunity and are rejected for the reasons expressed below. infrct III.C.2.a. Because the Court
finds it clear that the Prosecutor Defendants were acting as agents of the State, they are entitled to
sovereign

immunity,

and therefore Counts III, IV, V, and VI against them in their official

capacities must be dismissed.
2. Individual Capacity

1983 and NJCRA Claims

a. A bsotate Prosecutoriat 1mm unity
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 v. Pctchtnian,
424 U.S. 409, 410 (1976). The Supreme Court held that a prosecutor is absolutely immune for
actions that are “intimately associated with the judicial phase of the criminal process” while

15

functioning as an advocate for the State.

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

Prosectttor 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 absoltLte immunity, the decision to withhold
such evidence from the defense while functioning as an advocate for the State is protected by
absolute immunity.”). Since inibler, 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 walTant application.” Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009)
(citations omitted). On the other hand, a prosecutor’s actions that are taken in an investigative or
administrative capacity may be protected by qualified immunity only. See Kulwicki v. Dawson,
969 F.2d 1454, 1463 (3d Cir. 1992); see also Yarns v. Cty. of Del., 465 F.3d 129, 138 (3d Cir.
2006) (reasoning that the handling of a request for scientific test on evidence made afier conviction

may “be best described as part of the prosecutor’s administrative duties.”) (quotations and citations
omitted).
Here, the Prosecutor Defendants allegedly: (i) used unreliable or false evidence and
testimony to secure an indictment from the grand jury; (ii) secured search warrants based on
misleading information; (iii) improperly elicited a photo identification of Plaintiff from two
eyewitnesses in preparation for trial; and (iv) failed to disclose that one of the government’s
witnesses at trial was a police informant.

(See generally Compl.).

Contrary to Plaintiffs

argument, (ECF No. 28 at 34—37), this alleged conduct was not investigative, but fell within “the
core of the prosecutorial function.” Muiichinski v. Solomon, 618 F. App’x 150. 154 (3d Cir. 2015)
(holding that a prosecutor was entitled to absolute immunity from the plaintiffs claim that the
prosecutor ignored inconsistent evidence in determining whether there was probable cause for his
arrest): see also Ray v. N.J. 219 F. App’x 121, 124 (3d Cir. 2007) (explaining that prosecutorial

16

immunity

also extends to decisions to seek an indictment and to preparations for a grand jury)

(citations omitted). To the extent that the Prosecutor Defendants’ alleged conduct was performed
out of court. said conduct was nevertheless in preparation for the criminal proceedings against
Plaintiff. See Burns v. Reed, 500 U.S. 478, 485 (1991) (“the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the initiation of a prosecution and actions
apart from the courtroom.”) (quoting Imbter, 424 U.S. at 431 n.33); see a/so Jeriytone v. Mttsto,
167 F. App’x 295, 300 (3d Cir. 2006) (“[p]rosecutors enjoy absolute immunity... for evaluation
of evidence collected by investigators, and for failure to conduct [an] adequate investigation before
filing charges.”) (internal citations omitted). Therefore, the Prosecutor Defendants are entitled to
absolute prosecutorial immunity, and Counts III, IV, V, and VI against them in their individual
capacities must be dismissed.
b. Quct/i/Ied hflh?lttl?111
Although the Court finds that absolute prosecutorial immunity applies to the Prosecutor
Defendants, it will also address the alternative possibility that the Prosecutor Defendants are
protected by qualified immunity. See Yarns, 465 F.3d at 140 (noting that when a district court
determines whether a prosecutor is immune fiom a civil rights claim, it would be helpful for the
purposes of a potential appeal if that district court were to address both absolute and qualified
immunity

in the first instance). In determining whether the Prosecutor Defendants are entitled to

qualified immunity, 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.” Wa/ten
v.

Pike C/i’., Pa., 544 F.3d 182, 191 (3d Cir. 200$) (internal quotations and citation omitted).

17

The Court finds that even if the Prosecutor Defendants were not absolutely immune from
liability in this case, they would still be entitled to qualified immunity. As discussed throughout
this

Opinion.

Plaintiff alleges that the Prosecutor Defendants’ presentation of misleading evidence

and failure to disclose that one of their witnesses was a police informant violated his Fourth, Fifth,
Sixth, Eight, and Fourteenth Amendment rights.

(Compl.

¶

135—143). However, Plaintiffs

Complaint does not allege that the Prosecutor Defendants intentionally elicited evidence they knew
to be false or that they acted “in bad faith or with an

improper motive.”

Bowser v. Borough of

Free/told, 99 F. App’x 401, 404 (3d Cir. 2004). Rather, Plaintiff alleges that the Prosecutor
Defendants shotilci have known that one of their witnesses was a police informant, and should have
known that the identification of Plaintiff by an eyewitness contradicted that same witness’s earlier
statements. (Compl.

¶ 3$,

40—41). These allegations, without more, are not sufficient to show

the violation of a “clearly established constitutional right.” Mierrua v. CTh’ of Garfield, 170 F.
App’x 212, 215 (3d Cir. 2005) (affirming the district court’s conclusion that a prosecutor was
entitled to qualified immunity from the plaintiffs claim that the prosecutor mishandled the
investigation underlying the criminal charges that were brought against the plaintiff); see also
Wilson v. Russo, 212 F.3d 781, 789 n.5 (3d Cir. 2000) (stating that an unsatisfactory or even
negligent investigation does not deny a defendant entitlement to qualified immctnity).
Accordingly, the Prosecutor Defendants are entitled to qualified immclnity.
3. Tort Claims Against the Prosecutor Defendants
To the extent that any of Plaintiffs common law causes of action are not dismissed based
on the above analysis. the Court nevertheless finds that Plaintiff cannot state a claim for same
against the Prosecutor Defendants for the reasons expressed below.

1$

a. hitentioncil Torts

The Court finds that Plaintiff has failed to establish that the Prosecutor Defendants acted
with the intent required under New Jersey law to support the allegations set forth in Counts VII,
IX, and X. First, a plaintiff can establish aprimafacie claim for intentional infliction of emotional
distress by showing: “(1) that the defendant intended to cause emotional distress; (2) that the
conduct was extreme and outrageous: (3) that the actions proximately caused emotional distress;
and (4) that plaintiffs emotional distress was severe.” Witherspoon v. Rent—A—Center, Inc., 173
F. Supp. 2d 239, 242 (D.N.J. 2001) (citing Buckley v. Trenton Say. Fund Soc v, ill N.J. 355, 366
(1988)). Second, a claim of malicious prosecution requires: “(I) the defendants initiated a criminal
proceeding: (2) the criminal proceeding ended in plaintiffs favor: (3) the proceeding was initiated
without probable cause: (4) the defendants acted maliciously or for a purpose other than bringing
the plaintiff to jtistice; and (5) the plaintiff sciffered a deprivation of liberty
Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)

(quoting

Kossler v.

Lstatc of Smith v. Alarasco, 3 18 F.3d 497. 521

(3d Cir. 2003)). Finally, a claim of abuse of process under New Jersey law requires that the
defendants initiated process with an ulterior motive and took some further act “representing the
perversion of the legitimate use of the process.” Simone v. Golden Nugget Hotel & Casino, 844
F.2d 1031. 1036—37 (3d Cir. 1988) (citations omitted).
As previously discussed in regard to the Prosecutor Defendants’ entitlement to qualified

immunity, supra III.C.2.b, Plaintiff has not set forth any facts showing that the Prosecutor
Defendants intentionally withheld information or elicited evidence that they knew to be false.
While the alleged conduct of the Prosecutor Defendants may at most satisfy a negligence standard,
these allegations are not sufficient to show that the Prosecutor Defendants acted maliciously or

with an ulterior motive. See, e.g., LoBiondo r. Schwartz, 199 N.J. 62, 93—94 (2009) (“Malice.

19

is defined as the intentional doing of a wrongful act without just cause or excuse.”) (quotations
and citations omitted); see also Fregara v. Jet Avicttion Bus. Jets, 764 F. Supp. 940, 956 (D.N.J.
1991) (stating that a plaintiff cannot establish intentional infliction of emotional distress by merely
alleging that the defendants acted

“unjust, unfair

and unkind.”). Rather, the Complaint shows that

the only puiiose the Prosecutor Defendants had in charging Plaintiff was to prosecute him for the
March 20. 1994 murder.1 Accordingly, Plaintiff cannot establish a claim of intentional infliction
of emotional distress, malicious prosecution, or abuse of process against the Prosecutor
Defendants, and said claims must be dismissed.
b. Negligence
Though Plaintiff can state a claim for negligent infliction of emotional distress as previously
discussed, supra I11.B.3.b, said claim against the Prosecutor Defendants is nevertheless barred by
prosecutorial immunity. The New Jersey Tort Claims Act provides for prosecutorial immunity
and specifically states that “[a] public employee is not 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
already discussed above,

supra

III.C.3.a, the Court found that Plaintiff failed to allege that the

Prosecutor Defendants were acting with malice or outside the scope of their employment.
Moreover. the New Jersey Tort Claims Act’s limitation of prosecutorial immunity does not appear
to incorporate a claim for negligent infliction of emotional distress, as said claim requires a

Because Plaitttitifails to establish a required element for each of these causes efaction, the Court finds it unnecessary
to analyze the other elements of same.

20

showing of negligence, not malice.5 See Decker, 116 N.J. at 429. Accordingly, the Court finds
that Count VIII against the Prosecutor Defendants is barred by prosecutorial

immunity

and must

be dismissed.
D. Police Defendants

1. Failure to State a Claim
Despite accepting Plaintiffs Complaint as true. there are not sufficient factual allegations
to show that the Police Defendants violated a constitutional right or possessed the intent or duty
of care necessary to establish any of Plaintiffs claims. The only allegation Plaintiff makes against
the Police Defendants is that they did not disclose to Plaintiff that one of the witnesses at trial was
a police informant despite being aware of said fact. (Compi.

¶ 38).

While Plaintiff alleges that

the Police Defendants worked with the police informant “in the past.” (Compl.

¶J

38 (emphasis

added)), there are no allegations that the Police Defendants interacted with said informant in this
case. Moreover, Plaintiff does not allege that the Police Defendants were in any way involved in,

or even aware oL the investigation, arrest, or prosecution of Plaintiff. (See generally Compl.).
The fact that the Police Defendants knew the identity of the police informant, without more, is not
sufficient for this Court to find that the Police Defendants had a responsibility to disclose said
information to Plaintiff, or that their failure to do so violated Plaintiffs constitcLtional rights. See
Maths 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 aBraclv obligation when the officer was not involved or “acting on the government’s behalf’

in said murder trial) (quoting Ky/es v. Whitlev, 514 U.S. 419. 437 (1995)): Seidel v. Greenberg,

Because the Prosecutor Defendants were not acting as agents of Defendant Union, this analysis of prosecutorial
immunity does not apply to Defendant Union. Though the Court agrees with Defendant Union that it cannot be
held liable for the conduct of the Prosecutor Defendants, (see geneiaflv ECF No. 33). that analysis does not apply
to the various police officers implicated in this case.
21

108 N.J. Super. 248, 257 (Law Div. 1969) (“In order to sustain the action [for malicious
prosecution], it must affirmatively appear.

.

.

that the party sought to be charged was the proximate

and efficient cause of maliciously putting the law in motion.”) (citation omitted). Because the
Police Defendants were not involved in the investigation or prosecution of Plaintiff, nor were they
required to disclose information to Plaintiff, the Court finds that Plaintiff cannot assert a claim
against them. Accordingly, all claims against the Police Defendants must be dismissed.
2. Qualified Immunity
The Court finds that Plaintiffs civil rights claims could also be dismissed on the alternative
grounds of qualified immunity. As stated above, a law enforcement defendant is entitled to
qualified immunity when “the conduct alleged by the plaintiff violated a clearly established
principle of constittitional or statutory law,” and the violation of said right “would have been
apparent to an objectively reasonable official.” Walter, 544 F.3d at 191 (citations omitted). Here,
there is nothing in the record or law cited by Plaintiff, (see general/v ECF No. 51), that would lead
the Court to conclude that a police officer who was not involved in the underlying case and failed
to disclose information violated a “clearly established right.” furthermore, the Court finds that it
would be contradictory to conclude that the allegations against Police Defendants gave rise to a
violation of a “clearly established right” that a reasonable officer would be aware of when, as
discussed above, supra III.D.1, said allegations are not even sufficient to show a constitutional
violation in the first place. Accordingly, the Court finds that the Police Defendants are entitled to
qualified immunity, and Counts III, IV, V, and VI are barred by same.

22

IV.

CONCLUSION

for the abovementioned reasons, the Court hereby grants in part the Defendants’ Motions,

with the exception that the Court hereby denies the

parts of

Defendants’ Motions seeking to

dismiss Count I against Defendant Treasury and Count VIII against Defendant Union.
appropriate Order follows this Opinion.

Dated:Novernber

D

,2018.

J
E L. LINARES
Chief Judge, United States District Court

23

An