MURPHY v. MIDDLESEX COUNTY et al

Filing 37

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/13/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALAN MURPHY,

Civil Action No. 15-7102 (FLW)

Plaintiff,
v.

MEMORANDUM OPINION

MIDDLESEX COUNTY, et al.,
Defendants.
BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiff Alan Murphy’s (“Plaintiff”) motion to
amend the pleadings in order to add the Middlesex County Prosecutor’s Office (“MCPO”) as a
defendant and to assert claims of conspiracy; county and supervisory liability for the deprivation
of constitutional rights; and violations of New Jersey’s Survivor’s Act and Wrongful Death Act
against it. Defendant Middlesex County (“Middlesex”) has opposed Plaintiff’s motion on futility
grounds. 1 The Court has fully reviewed the arguments made in support of and in opposition to
Plaintiff’s motion. The Court considers Plaintiff’s motion to amend without oral argument
pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Plaintiff’s motion to
amend to add MCPO as a defendant is GRANTED.
I.

Background and Procedural History
This matter involves Plaintiff’s claims as general administrator and administrator ad

prosequendum of the Estate of Arthur J. Murphy against Middlesex, Warden Edmund Cicchi,
Officer Christopher Belinksy, Officer Brian Fogerty, Officer Daniel Marcinkko, Lt. Michael

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While a heading in Middlesex’s letter brief suggests that it also opposed Plaintiff’s motion
based on undue delay (Def. Ltr. Br. of 9/22/2016 at 4; Docket Entry No. 34), Middlesex does not
address undue delay therein. Instead, it only includes a discussion based on the alleged futility of
Plaintiff’s proposed addition of MCPO. (Id. at 4-7).

Domanoski, Officer Eugene Marra, Sgt. Jason Turner, Officer Anthony Porcella, Officer Toby
Metzger, Officer John Bartlinksi, Jr., Police Officer Brian Favretto, Police Officer Douglas
Turner and John Does 1-10 for alleged violations of decedent, Arthur Murphy’s (“Decedent”)
rights articulated under 42 U.S.C. § 1983, the United States Constitution and the laws and
Constitution of the State of New Jersey. The Court assumes the parties are familiar with the
nature and history of this litigation and will not recite all those details here. Relevant to this
motion is Plaintiff’s attempts to obtain discovery regarding MCPO’s internal affairs investigation
of the Defendants use of force with respect to Decedent, which allegedly resulted in Decedent’s
death.
Both before the Complaint in this matter was filed and afterwards, Plaintiff attempted to
secure discovery that would indicate whether MCPO presented the matter surrounding the use of
force and Decedent’s death for independent grand jury review, which Plaintiff maintains was
required by the compulsory investigative procedures of the Attorney General of the State of New
Jersey. In this regard, Plaintiff relies on ¶9 of the New Jersey Attorney Law Enforcement
Directive No. 2006-5 (the “Directive”), which states, in relevant part:
Where the undisputed facts indicate that the use of force was
justifiable under the law, a grand jury investigation and/or review
will not be required, subject to review by and prior approval of the
Division of Criminal Justice, except under Paragraphs 5 and 6
where the final decision will be made by the Attorney General or
his designee. In all other circumstances, the matter must be
presented to a grand jury.
(Ex. C. to Cert. of Brad M. Russo; Docket Entry No. 33-5).
Unsatisfied with the material produced by Middlesex, which Plaintiff contended failed to
establish that the matter involving the use of force on Decedent was either (1) presented to a
grand jury as required by the Directive or (2) MCPO’s investigation revealed undisputed facts

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indicating that the use of force was justifiable and that a grand jury investigation was not
required because MCPO’s findings were submitted to review by and prior approval of the
Division of Criminal Justice, Plaintiff enlisted the Court’s assistance. During a telephone
conference held on June 29, 2016, the Court instructed Middlesex to confirm whether or not said
matter was submitted to a grand jury and, if not, what MCPO did with the close out investigation
report, i.e., was it submitted to the Attorney General for a waiver, who contacted the Attorney
General and how. On July 15, 2016, Middlesex confirmed that the matter was not presented to a
grand jury “because the Prosecutor’s Office concluded that no criminal wrongdoing took place.”
(Ex. B to Cert. of Brad M. Russo at 2; Docket Entry No. 33-4). Middlesex also indicated that
“there are no records that indicate whether or not the State Attorney General was contacted
and/or consulted in the Middlesex County Prosecutor’s Office decision not to present this matter
to a Grand Jury.” (Id.)
Based on Middlesex’s representations, Plaintiff sought permission to move to amend his
Complaint to add MCPO as a defendant. The Court found good cause to adjust the schedule to
permit Plaintiff’s motion and ordered that it be filed by September 9, 2016. (See Minute Entry of
8/9/2016). Plaintiff complied and filed the instant motion.
As noted above, Middlesex opposes Plaintiff’s motion to amend on futility grounds. In
this regard, Middlesex raises two futility arguments. First, it contends that Plaintiff’s proposed
amendments are futile because his proposed conspiracy claim fails to state a claim under Rule
12(b)(6) as it is “the epitome of … ‘unwarranted inferences, unsupported conclusions or legal
conclusions disguised as factual allegations.’” (Def. Ltr. Br. of 9/22/2016 at 5 (quoting Baraka
v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007))). Indeed, Middlesex claims that Plaintiff’s
conspiracy “allegation is an unwarranted inference that stretches conceivability and fails to

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establish the plausibility standard enunciated in Twombly, 550 U.S. at 570.” (Id. at 5-6).
Second, Defendant argues that Plaintiff’s proposed amendments are futile because MCPO is
entitled to absolute immunity with respect to its decision not to proceed with prosecution of law
enforcement, a decision Middlesex contends falls “squarely within the MCPO’s prosecutorial
duties.” (Id. at 7). For these reasons, Middlesex argues that Plaintiff’s motion to amend should
be denied.
II.

Analysis
A. Standard of Review
Pursuant to Rule 15(a)(2), leave to amend the pleadings is generally granted freely. See

Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.” Id. However, where there is an absence of undue
delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally
granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004). Here, the Court focuses on futility as
that is the basis for Middlesex’s objections.
An amendment is futile if it “is frivolous or advances a claim or defense that is legally
insufficient on its face.” Harrison Beverage Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 468
(D.N.J. 1990) (internal quotation marks and citations omitted). To determine if an amendment is
“insufficient on its face,” the Court utilizes the motion to dismiss standard under Rule 12(b)(6)
(see Alvin, 227 F.3d at 121) and considers only the pleading, exhibits attached to the pleading,
matters of public record, and undisputedly authentic documents if the party’s claims are based

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upon same. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d
Cir. 1993).
To determine if a complaint would survive a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all the facts alleged in the pleading, draw all reasonable inferences in
favor of the plaintiff, and determine if “under any reasonable reading of the complaint, the
plaintiff may be entitled to relief[.]” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008). “[D]ismissal is appropriate only if, accepting all of the facts alleged in the [pleading] as
true, the p[arty] has failed to plead ‘enough facts to state a claim to relief that is plausible on its
face[.]’” Duran v. Equifirst Corp., Civil Action No. 2:09-cv-03856, 2010 WL 918444, *2
(D.N.J. March 12, 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). Put simply, the alleged facts must be sufficient to “allow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Additionally, in assessing a motion to
dismiss, while the Court must view the factual allegations contained in the pleading at issue as
true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or
legal conclusions disguised as factual allegations.” Baraka, 481 F.3d at 211.
B. Discussion
Turning first to Plaintiff’s conspiracy claim, Plaintiff alleges in relevant part the
following:
¶16. Pursuant to New Jersey Attorney General Guidelines, this
Defendant [MCPO] is responsible for conducting mandatory
internal affairs investigations when County law enforcement
personnel utilize force which results in serious bodily injury or
death, in accordance with New Jersey Attorney General Law
Enforcement Directive No. 2006-5.

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¶17. Defendant MIDDLESEX COUNTY PROSECUTOR’S
OFFICE is and was at all times material herein responsible for the
implementation of the New Jersey Attorney General directives
relating to internal affairs investigations when County law
enforcement personnel utilize force which results in serious bodily
injury or death, in accordance with New Jersey Attorney General
Law Enforcement Directive No. 2006-5.
¶18. Defendant MIDDLESEX COUNTY PROSECUROTR’S
OFFICE did conduct an internal affairs investigation regarding the
altercation involving ARTHUR MURPHY on November 26, 2013,
at the Middlesex County Adult Correctional Center, as required by
New Jersey Attorney General Law Enforcement Directive No.
2006-5.
***
¶50. Within hours of the incident, the above corrections officers
and jail staff/administration completed various incident reports, use
of force forms and provided statements, which, individual and
jointly, were in furtherance of concealing the excessive force
utilized and depriving Mr. Murphy of his constitutional rights to be
free from excessive force and punishment.
¶51. The Middlesex County Prosecutor’s Office conducted an
internal affairs investigation into this matter.
¶52. This matter involved the use of force by law enforcement
involving death or serious injury to a person.
¶53. This investigation was required to be conducted in
accordance with New Jersey Attorney General Law Enforcement
Directive No. 2006-5.
¶54. Eventually the Internal Affairs Investigation was closed and
no wrongdoing was found regarding any law enforcement officer
involved.
¶55. Paragraph 9 of the New Jersey Attorney Law Enforcement
Directive No. 2006-5, in relevant part, states that “[w]here the
undisputed facts indicate that the use of force was justifiable under
the law, a grand jury investigation and/or review will not be
required, subject to review by and prior approval of the Division of
Criminal Justice, except under Paragraphs 5 and 6 where the final
decision will be made by the Attorney General or his designee. In

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all other circumstances, the matter must be presented to the grand
jury.”
¶56. Despite the direct requirement to do so, the Middlesex
County Prosecutor’s Office failed to submit this matter for grand
jury review or obtain prior approval from the Division of Criminal
Justice.
¶57. Instead the Middlesex County Prosecutor’s Office closed the
investigation without grand jury review and cleared the officers
involved of any wrongdoing. In so doing, the Middlesex County
Prosecutor’s Office did not allow for any public transparency,
oversight or independent review into their investigation of the
incident and ensured that the corrections officer’s conduct would
not be disciplined.
***
¶87. On November 25, 2013, 2 Defendants OFFICER
CHRISTOPHER BELINSKY, OFFICER BRIAN FOGARTY,
OFFICER DANIEL MARCINKO, LT. MICHAEL
DOMANOSKI, LT. EUGENE MARRA, SGT. JASON TURNER,
OFFICER ANTHONY PORCELLA, OFFICER TOBY
METZGER, OFFICER JOHN BARTLINSKI, JR. and the
Middlesex County Prosecutor’s Office, planned and/or otherwise
agree to conspire to violate Mr. Murphy’s Fourth and Fourteenth
Amendment rights to be free from the use of excessive force and
pre-conviction punishment and also conspired to cover-up, not
fully investigate and/or violate mandatory investigatory protocol to
ensure those involved would not be disciplined.
¶88. The conspiracy formed or began when Mr. Murphy was
deemed ‘uncooperative’ during portions of the intake process such
as fingerprinting and answering certain intake questions. In
retaliation for being uncooperative, the Defendants escorted Mr.
Murphy to a small room ‘change out’ room, devoid of video
surveillance, for the purpose of conducting a strip search.
Approximately seven (7) corrections officers were dispatched and
congregated in the small ‘change out’ room to observe the strip
search of Mr. Murphy.
¶89. Without any provocation beyond the apparent contention that
Mr. Murphy ‘clenched his fists’, he was violently taken to the
2

The Court notes that in earlier allegations, Plaintiff referenced November 26, 2013 but in the
following ones he references November 25, 2013.
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ground and into the prone position. While face first on the ground,
approximately nine (9) corrections officers positioned themselves
on top and alongside Mr. Murphy and exploited the vulnerable and
defenseless position of Mr. Murphy by utilizing various forms of
force upon his body, including slamming his head to the concrete
floor, closed hand strikes, oleoresin capsicum (OC) spray,
compliance holds and the placement of a ‘spit mask’ over his face.
¶90. On the apparent basis that Mr. Murphy was face down with
nine officers on and around his body, yet able to ‘swing his arms,
punch and kick officers’, force continued to be utilized until Mr.
Murphy was unresponsive.
¶91. It was not until the officers physically removed Mr.
Murphy’s pants and were physically installing a prison jumpsuit
that Mr. Murphy was determined to be ‘unresponsive’. At this
point, Mr. Murphy was fully secured with handcuffs and blood was
reported to be flowing from his mouth.
¶92. During each infliction of force against Mr. Murphy, the
defendant corrections officers would either act directly in concert
or match each other’s violence with further unnecessary escalation
by the other.
¶93. At no point on November 25, 2013, did any officer involved
attempt to prevent or curtail the other officers’ utilization of
excessive force.
¶94. At no point on November 25, 2013, did any officer involved
attempt to protect Mr. Murphy from the violent attacks of each
respective officer.
¶95. On November 25, 2013, the above defendants acted in
concert with the specific intent and general conspiratorial objective
of utilizing excessive force and punishing Mr. Murphy for being
‘uncooperative’.
¶96. Within hours of the incident, the above corrections officers
completed various incident reports, use of force forms and
provided statements, which, individual and jointly, were in
furtherance of concealing the excessive force utilized and
depriving Mr. Murphy of his constitutional rights to be free from
excessive force and punishment.
¶97. Within hours of the incident, members of the Middlesex
County Prosecutor’s Office began conducting an investigation into
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the incident as required by New Jersey Attorney General Law
Enforcement Directive No. 2006-5.
¶98. Paragraph 9 of the New Jersey Attorney Law Enforcement
Directive No. 2006-5, in relevant part, states that “[w]here the
undisputed facts indicate that the use of force was justifiable under
the law, a grand jury investigation and/or review will not be
required, subject to review by and prior approval of the Division of
Criminal Justice, except under Paragraphs 5 and 6 where the final
decision will be made by the Attorney General or his designee. In
all other circumstances, the matter must be presented to the grand
jury.”
¶99. Despite the direct requirement to do so, the Middlesex
County Prosecutor’s Office failed to submit this matter for grand
jury review or obtain prior approval from the Division of Criminal
Justice.
¶100. Instead the Middlesex County Prosecutor’s Office closed
the investigation without grand jury review and cleared the officers
involved of any wrongdoing. In so doing, the Middlesex County
Prosecutor’s Office did not allow for any public transparency,
oversight or independent review into their investigation of the
incident.
¶101. The decision to violate required investigative protocol was
for the purpose of shielding the officers involved from exposure to
discipline and/or criminal liability.
¶102. The decision to violate required investigative protocol was
pursuant to an inferred agreement with the officers involved in
shielding them from exposure to discipline and/or criminal
liability. The decision to violate required investigative protocol
was in furtherance of the overall conspiratorial objective to violate
the Decedent’s constitutional rights and cover-up the wrongdoing
of the officers involved.
(Pl. Proposed Amended Cmplt.; Ex. A to Cert. of Brad M. Russo; Docket Entry
No. 33-3).
The Court finds Plaintiff’s inference that MCPO’s failure to comply with ¶9 of the
Directive arose from an agreement with the officers to shield them from discipline and/or
criminal liability to be justified based on the facts pled in the proposed Amended Complaint. As
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detailed above, Plaintiff alleges that a directive was in place that required incidents involving law
enforcement’s use of deadly force or force that resulted in serious bodily injury to either be
presented to a grand jury or, where the use of force was indisputably justified, reviewed by the
Division of Criminal Justice. Plaintiff further alleges that MCPO never presented Defendants’
use of force on Decedent to a grand jury, nor did MCPO obtain the Division of Criminal
Justice’s review of Defendants’ use of force or its prior approval not to submit the incident to a
grand jury. Plaintiff alleges that MCPO’s failure to comply with ¶9 of the Directive resulted in
MCPO’s investigation of the use of force on Decedent not being independently reviewed.
Plaintiff then infers that MCPO reached this decision, i.e., the decision to not comply with the
Directive, based on a tacit agreement with the officers to protect them from discipline and/or
criminal liability. Under the circumstances of this case, this is a reasonable inference supported
by the facts alleged by Plaintiff.
Whether Plaintiff will ultimately succeed on his conspiracy claim is a question for
another day. The Court’s concern now is whether “under any reasonable reading of the
complaint, the plaintiff may be entitled to relief[.]” Phillips v. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008). In other words, has Plaintiff “plead ‘enough facts to state a claim to
relief that is plausible on its face[.]’” Duran, 2010 WL 918444, at *2 (quoting Bell Atl. Corp.,
550 U.S. at 570). For the reasons set forth above, the Court finds that Plaintiff has.
Thus, the Court turns to Middlesex’s second argument that even if Plaintiff’s allegations
are sufficient to state a claim, they are nevertheless futile because MCPO is entitled to absolute
immunity. The “official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct.
1934, 114 L.Ed.2d 547 (1991). Further, “[t]he presumption is that qualified rather than absolute

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immunity is sufficient to protect government officials in the exercise of their duties.” Id. At 48687. As a result, the Supreme Court has been “‘quite sparing’ in [its] recognition of abosulte
immunity[.]” Id. At 487 (quoting Forrester v. White, 484 U.S. 219, 224,108 S.Ct. 538, 98
L.Ed.2d 555 (1988)).
“To overcome the presumption” that only qualified immunity applies, “a prosecutor must
show that he or she was functioning as the state’s advocate when performing the action(s) in
question.” Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008). This analysis focuses on “the
nature of the function performed, not the identity of the actor who performed it.” Forrester, 484
U.S. at 229; Odd, 538 F.3d at 208. Absolute immunity will therefore protect prosecutors from
liability under §1983 for conduct “intimately associated with the judicial phase of the criminal
process[.]” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). It
does not, however, apply to “[a] prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for
judicial proceedings[.]” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125
L.Ed.2d 209 (1993) (citing Burns, 500 U.S. at 494-96). The key is whether or not a prosecutor is
functioning in “his role as advocate for the State” when undertaking the actions in question. Id.
at 273. If the answer to this question is yes, then absolute immunity applies. Id. If not, then the
prosecutor is entitled to only qualified immunity, “the norm for executive officers[.]” Id.
(internal quotation marks and citations omitted).
While “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[,]” preparing
for same will inevitably require a prosecutor to obtain, review and evaluate evidence, and, “at
some point, with respect to some [of these] decisions, the prosecutor no doubt functions as an

11

administrator rather than as an officer of the court.” (Imbler, 424 at 431, n.33). As noted in
Burns, “[a]lmost any action by a prosecutor, including his or her direct participation in purely
investigative activity, could be said to be in some way related to the ultimate decision whether to
prosecute[.]” 500 U.S. at 495. Indeed, “almost any action by a prosecutor, including the
dispatch of purely administrative tasks, can said to be in some way related to more central
prosecutorial functions.” Odd, 538 F.3d at 213. However, absolute immunity has never been
found to be that expansive. Burns, 500 U.S. at 495.
While there is no bright line in determining whether a prosecutor is acting as an advocate
versus an administrator, courts have found “the timing of the prosecutor’s actions to be relevant
in determining their nature[.] Odd, 538 F.3d at 213. As such, the Third Circuit has noted that
“pre-indictment and post-conviction actions are more likely administrative than advocative.” Id.
Further, the Supreme Court has noted that “[a] prosecutor neither is, nor should consider himself
to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at
274.
In the end, however, whether a prosecutor is functioning as an advocate or administrator
often presents a difficult, case specific question. See Imbler, 424 U.S. at 432, n. 33 (noting
difficulty in likely associated with distinguishing between prosecutor’s functions). In order to
draw “a proper line between” a prosecutor’s function as advocate for the state and administrator
(Id.), the Court must “narrowly define the act at issue.” Odd, 538 F.3d at 213. Here, Middlesex
defines the act as MCPO’s decision “whether to prosecute, i.e., present the matter before a grand
jury[.]” (Def. Ltr. Br. of 9/22/2016 at 7). In contrast, Plaintiff defines the act as MCPO’s failure
to follow the compulsory procedures set forth in the Directive. Under the circumstances of this
case, the Court finds Plaintiff’s definition to be more appropriate. Middlesex bears the burden of

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establishing that it is entitled to absolute immunity. Middlesex’s definition fails to address the
fact that, as Plaintiff notes, according to the Directive, MCPO lacked discretion in determining
whether to present its investigation of the officers’ use of force to a grand jury. Instead,
according to the Directive, the only discretion MCPO had was in deciding whether to submit the
matter to a grand jury or to the Division of Criminal Justice for its review and prior approval to
bypass a grand jury. According to the Directive, MCPO had no discretion to refuse both options
and simply close the investigation based on its own determination of no wrongdoing.
Having adopted Plaintiff’s characterization of the act at issue, it follows that MCPO is
not entitled to absolute immunity. MCPO’s investigation of the officers’ use of force against
Decedent was exactly that, an investigation. In light of the Directive, no advocacy was required
on MCPO’s part.
The Court’s decision in this regard is further supported by the policy considerations
underlying prosecutorial absolute immunity. In this regard, in deciding “whether to extend
absolute immunity under § 1983, the Supreme Court considers whether: (1) there is a common
law tradition of according immunity in similar situations; (2) denying immunity would subject
the prosecutor to the chilling influence of vexatious lawsuits; and (3) there exist adequate checks
on prosecutorial abuse other than individual suits against the prosecutor.” Odd, 538 F.3d at 216
(citations omitted). Here, Middlesex, who bears the burden of proof, did not identify a common
law tradition of extending absolute immunity to a prosecutor who fails to follow a mandatory
directive governing its investigation of the use of deadly force or force that results in serious
bodily injury. Second, as in Odd, “it is unlikely that denying absolute immunity . . . would
interfere with [MCPO’s] independent decisionmaking by exposing them to vexatious litigation”
because accepting Plaintiff’s allegations as true, as the Court must, MCPO “had no decisions to

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make” but was required to abide by the Directive. Id. Third, under the circumstances of this
case, absent an individual suit against the MCPO, there is no adequate check on the potential for
prosecutorial abuse resulting from MCPO’s failure to follow the Directive.
III.

Conclusion
For the reasons stated above, Plaintiff’s motion to amend is GRANTED. An appropriate

Order follows.
Dated: April 13, 2017

s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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