DESSOURCES v. MANNING et al
LETTER OPINION. Signed by Judge Susan D. Wigenton on 10/16/2020. (ams, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
October 16, 2020
Eldridge Hawkins, Esq.
Eldridge Hawkins, LLC
60 Evergreen Place Suite 510
East Orange, NJ 07018
Counsel for Plaintiff
John F. Regina, Esq.
Office of the Attorney General of New Jersey
124 Halsey St.
P.O. Box 45029
Newark, NJ 07101
Counsel for Defendant Essex County Prosecutor’s Office
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Louis D. Dessources v. Dennis Manning et al.
Civil Action No. 18-9324 (SDW) (ESK)
Before this Court is Defendant Essex County Prosecutor’s Office’s (“ECPO” or
“Defendant”) Motion to Dismiss Plaintiff Louis D. Dessources’ (“Dessources” or “Plaintiff”)
Third Amended Complaint (“TAC”) pursuant to Federal Rules of Civil Procedure (“Rule”)
12(b)(1) and (6). (D.E. 116.) Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, having
considered the parties’ submissions, decides this matter without oral argument pursuant to Rule
78. For the reasons discussed below, ECPO’s Motion to Dismiss is GRANTED.
BACKGROUND & PROCEDURAL HISTORY1
On May 15, 2017, Defendants Shahid Webb (“Webb”) and Dennis Manning (“Manning”)
verbally and physically assaulted Plaintiff outside of Defendant Odabro Lounge 9 Bar (“Odabro”)
in Orange, New Jersey. (D.E. 91 ¶¶ 6-11.) During this altercation, Manning pointed a gun at
For the limited purposes of this Opinion, this Court treats the facts in the TAC as true. This Court only recounts
facts needed to resolve ECPO’s motion, which seeks to dismiss Plaintiff’s claims against ECPO, only. Paragraph
citations to the TAC refer to those in the “Statement of Facts,” starting on page 7 of the TAC.
Plaintiff and Webb attempted to seize Plaintiff’s own, holstered gun, for which he was lawfully
permitted to carry. (Id. ¶¶ 1, 12, 14-15.) This came after prior encounters in which Webb and
Manning accosted Plaintiff at or around Odabro. (Id. ¶¶ 2-5.) When police officers from Orange,
New Jersey, arrived, they took Plaintiff’s gun and only listened to Webb and Manning’s version
of the events, which contained misrepresentations. (Id. ¶¶ 18-22.) ECPO subsequently pursued
charges against Plaintiff based on these events, which a grand jury ultimately “no billed,”
terminating the charges. (Id. ¶¶ 29-30, 32.)
Despite Plaintiff’s requests, ECPO declined to file charges against Webb and Manning and
refused to give Plaintiff their identities. (Id. ¶¶ 25-27, 31.) ECPO also successfully moved to take
away Plaintiff’s permit to carry a weapon, based on the May 15, 2017, events. (Id. ¶¶ 30, 32-33.)
Plaintiff originally brought this action on May 17, 2018. (D.E. 1.) After a couple
amendments (which were stricken, see D.E. 65, 72, 83), Plaintiff was granted leave to file the
operative TAC, which he did on January 10, 2020. (D.E. 87, 91.)2 ECPO filed the instant motion
to dismiss on July 21, 2020. (D.E. 116.) Plaintiff opposed on August 24, 2020, and ECPO timely
replied. (D.E. 120, 123.)3
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) may present either a facial or factual attack to a
court’s subject matter jurisdiction. “A facial attack ‘contests the sufficiency of the complaint
because of a defect on its face,’ whereas a factual attack ‘asserts that the factual underpinnings of
the basis for jurisdiction fail to comport with the jurisdictional prerequisites.’” Halabi v. Fed.
Nat’l Mortg. Ass’n, Civ. No. 17–1712, 2018 WL 706483, at *2 (D.N.J. Feb. 5, 2018) (internal
citations omitted). When reviewing facial attacks, “the court must only consider the allegations of
the complaint and documents referenced therein and attached thereto, in the light most favorable
to the plaintiff.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing In
re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In contrast, with a factual
attack, “a court may weigh and ‘consider evidence outside the pleadings.’” Id. (citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).
An adequate complaint must be “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief”).
The TAC brings the following counts against ECPO: Count 1, various violations of the New Jersey Constitution and
United States Constitution; Count 4, violations of his right to equal protection in public accommodations under the
New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:1-2; 10:5-4; 10:5-12(f); Count 5, violations
of the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-1 et seq. (“NJCRA”); Count 8, malicious prosecution; and
Count 9, intentional infliction of emotional distress. (See D.E. 91 at 16-30.)
Plaintiff requested an extension to his August 3 opposition deadline on August 11, which this Court granted. (D.E.
119.) Plaintiff is advised that this Court will not accept further late submissions without timely requests for extension.
In considering a motion to dismiss under Rule 12(b)(6), a court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to show “that the pleader is entitled to relief” as required by Rule
Plaintiff brings its claims against ECPO under 42 U.S.C. § 1983 (“§ 1983”) and the
NJCRA. ECPO moves to dismiss all claims against it, arguing it is (1) entitled to immunity under
the Eleventh Amendment, and (2) is not a “person” as required under § 1983 and the NJCRA.
A. Eleventh Amendment Immunity
Sovereign immunity under the Eleventh Amendment “’is a jurisdictional bar which
deprives federal courts of subject matter jurisdiction’ over states that have not consented to suit.”
Richardson v. New Jersey, Civ. No. 16-135, 2019 WL 6130870, at *3 (D.N.J. Nov. 18, 2019)
(quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir. 1996)); Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89, 98-100 (1984). This immunity extends to
state agencies when the “state is the real party in interest.” Beightler v. Office of Essex Cty.
Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009) (citations omitted). To determine this, the court
considers: “(1) the source of the agency’s funding—i.e., whether payment of any judgment would
come from the state’s treasury; (2) the status of the agency under state law; and (3) the degree of
autonomy from state regulation” (known as the Fitchik factors). Id.
The Third Circuit and courts in this district have consistently concluded that the Fitchik
factors favor finding that New Jersey county prosecutor’s offices, when engaging “in classic law
enforcement and investigative functions . . . act as officers of the state.” Id. (internal quotation
marks omitted); Woodyard v. Cty. of Essex, 514 F. App’x 177, 182 (3d Cir. 2013) (further noting
that Eleventh Amendment protections do not apply when “prosecutorial defendants” perform
“administrative tasks unrelated to their strictly prosecutorial functions”).4 Plaintiff alleges that, in
connection with the events on May 15, 2017, ECPO charged him, proceeded to prosecute him, and
took him to a grand jury, while it declined to prosecute Webb and Manning, or give Plaintiff
information on them. (See D.E. 91 ¶¶ 24-32.) Additionally, Plaintiff states that ECPO, in
Specifically, courts in this district have found, applying the Fitchik factors, that when a New Jersey county
prosecutor’s office conducts investigatory or enforcement functions: (1) the state will indemnify it; (2) it acts as an
agent of the state in enforcing state laws; and (3) the state attorney general may “take over any [county prosecutor’s]
investigation or prosecution.” Pitman v. Ottehberg, Civ. No. 10-2538, 2015 WL 179392, at *6-7 (D.N.J. Jan. 14,
2015); Frost v. Cty. of Monmouth, Civ. No. 17-4395, 2018 WL 1469055, at *6 (D.N.J. Mar. 26, 2018).
connection with these events, took away Plaintiff’s weapons and his permit to carry them. (See
id. ¶¶ 24, 30, 32-33.) These actions are within ECPO’s law enforcement, investigative, and
prosecutorial functions. See, e.g., Woodyard, 514 F. App’x at 182 (finding arresting and presenting
evidence to a grand jury are “clearly law enforcement functions”). Thus, as alleged, ECPO acted
as an officer of the state, and is entitled to Eleventh Amendment immunity.5
Plaintiff appears to argue that New Jersey has waived its immunity in federal court as to
NJLAD public accommodations claims, which make it unlawful for “any place of public
accommodation” to discriminate based on protected statuses, including, inter alia, one’s race or
national origin. N.J. Stat. Ann. § 10:5-12(f); see also id. §§ 10:1-2, 10:5-4; Ptaszynski v.
Uwaneme, 853 A.2d 288, 297 (N.J. App. Div. 2004) (finding state governmental agencies are
places of public accommodation)).)6 A state’s consent to be sued in federal court, waiving
sovereign immunity, must be “express and unequivocal.” Heine v. Comm’r of Dep’t of Cmty.
Affairs of New Jersey, Civ. No. 11-5347, 2014 WL 4199203, at *5 (D.N.J. Aug. 22, 2014). New
Jersey, however, “has not waived its sovereign immunity with respect to NJLAD claims,” outside
of instances in which it is sued in its capacity as an employer. Id.; see also Abulkhair v. Office of
Attorney Ethics New Jersey, Civ. No. 16-3767, 2017 WL 2268322, at *7-8 (D.N.J. May 24, 2017)
(further noting that sovereign immunity “applies to state common law causes of action”);
Chavarria v. State of New Jersey, Civ. No. 18-14971, 2019 WL 3798394, at *3-4 (D.N.J. Aug. 13,
2019) (dismissing claim based on N.J. Stat. Ann. § 10:5-12(f) as barred by sovereign immunity).7
B. “Person” under Section 1983 and NJCRA
To establish a claim under 42 U.S.C. § 1983, a plaintiff “’must demonstrate a violation of
a right secured by the Constitution and the laws of the United States,’” and “’that the alleged
deprivation was committed by a person acting under color of state law.’” Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) (quoting Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.
1993)).8 “[N]either a State nor its officials acting in their official capacities are ‘persons’ under §
Plaintiff’s reliance on Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999), is misplaced. (See D.E. 120 at 79.) Carter, which examined whether the Philadelphia District Attorney’s Office was entitled to Eleventh Amendment
protections, relied on Pennsylvania law when analyzing the Fitchik factors, and thus is not applicable to situations
involving New Jersey county prosecutor’s offices and New Jersey law. See In re Camden Police Cases, Civ. No. 104757, 2011 WL 3651318, at *7 n. 7 (D.N.J. Aug. 18, 2011) (finding a New Jersey county prosecutor’s office protected
by Eleventh Amendment immunity, distinguishing Carter); Lepping v. Cty. of Mercer, Civ. No. 18-2118, 2018 WL
5263281, at *7 (D.N.J. Oct. 23, 2018).
There are two exceptions to a state’s immunity under the Eleventh Amendment—first, where Congress has abrogated
a state’s sovereign immunity, and second, where the state has expressly waived its immunity. See Scarborough v.
Court of Common Pleas of Northampton Cty., 794 F. App’x 238, 239 (3d Cir. 2020). The first does not apply and is
not at issue here. See id. (noting Congress did not abrogate state’s immunity “through the enactment of § 1983”).
Plaintiff anyway fails to state this claim. Initially, it is unclear what protected statuses, listed under N.J. Stat. Ann.
§ 10:5-12(f), Plaintiff invokes, but this Court construes them as his race and national origin. (See D.E. 91 at 1 (noting
Plaintiff is Haitian American).) Plaintiff, however, makes no allegations plausibly showing that ECPO had
“discriminatory intent” against him based on these protected statuses, or that its actions had a “disproportionate
impact” on these groups. See Delbridge v. Whitaker, Civ. No. 09-4227, 2010 WL 1904456, at *6-7 (D.N.J. May 10,
2010) (noting these are elements for an NJLAD discrimination in a public accommodation claim (citing Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66 (1977))).
Section 1983 states, in relevant part: “Every person who, under color of [law] . . . 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,
1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). In turn, “arm[s] of the
State,” which include New Jersey county prosecutor’s offices when they engage in classic law
enforcement and investigative functions, are also not “persons” under § 1983. See Estate of
Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 854-55 (3d Cir. 2014); see also Estate
of Matthew Mckloskey v. Franklin Twp., Civ. No. 15-4171, 2016 WL 4680154, at *3 (D.N.J. Sept.
7, 2016) (noting a “county prosecutor’s office is not a ‘person’ capable of being sued under §
The NJCRA similarly creates a private right of action where a “person acting under color
of law” deprives another of “any substantive due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of [New Jersey].” N.J. Stat. Ann.
10:6–2. The NJCRA has been “repeatedly interpreted . . . analogously to § 1983.” Trafton v. City
of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011); Richardson, 2019 WL 6130870, at *7.
As discussed above, as alleged in the TAC, ECPO engaged in classic law enforcement and
investigative functions. (See D.E. 91 ¶¶ 24-32.) Thus, for the same reasons as above, ECPO is
not a “person” for purposes of § 1983 or the NJCRA and may not be sued under either.
For the reasons set forth above, ECPO’s Motion to Dismiss is GRANTED. An appropriate
/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J
Edward S. Kiel, U.S.M.J.
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law
. . .” 42 U.S.C. § 1983.
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