LEITH v. WEITZ et al
Filing
57
OPINION filed. Signed by Judge Freda L. Wolfson on 5/24/2018. (mps)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
SHIRLENE FOAT LEITH,
:
:
Plaintiff,
:
Civ. No. 15-7227 (FLW) (LHG)
:
v.
:
:
LIEUTENANT STEVE WEITZ et al.,
:
OPINION
:
Defendants.
:
_________________________________________ :
FREDA L. WOLFSON, U.S.D.J.
I.
INTRODUCTION
Plaintiff, Shirlene Foat Leith (“Foat Leith”), is a state prisoner, presently incarcerated at
the Edna Mahan Correctional Facility, in Clinton, New Jersey. She is proceeding pro se with an
Amended Complaint asserting claims under 42 U.S.C. § 1983. (ECF No. 18.) Presently before
the Court is a motion by Foat Leith for default judgment against defendant Detective Dean Dakin
(“Dakin”), (ECF No. 28), a motion by Dakin to vacate an entry of default and to dismiss the
Amended Complaint under Federal Rule of Civil Procedure 12(b)(2), (4), (5), and (6), (ECF No.
30), a motion by defendant Lieutenant Steve Weitz (“Weitz”) to dismiss the Amended Complaint
under Rule 12(b)(6), (ECF No. 45), a request by Foat Leith that the Court construes as a motion
to disqualify Weitz’s counsel, (ECF No. 48 at 5), and a motion by Foat Leith for appointment of
pro bono counsel, (ECF No. 50). For the following reasons, the entry of default against Dakin is
vacated, the motion for default judgment is denied, the motions for dismissal are granted in part,
insofar as the claims for malicious prosecution and conspiracy are dismissed, and the remaining
portions of the motions are denied, likewise, the request for disqualification of counsel is denied,
and the motion for appointment of pro bono counsel is denied. Furthermore, the Court grants
Dakin and Weitz (collectively, “Defendants”) leave to file motions for summary judgment on the
issue of whether Foat Leith’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
II.
BACKGROUND
A. Underlying Circumstances
The facts underlying this case are contested, but Foat Leith alleges that they occurred as
follows. She represents that, at around 7:40 p.m., on October 4, 2013, she was walking down
Suydam Street, in New Brunswick, New Jersey, having just purchased several bottles of
perfume, when her shopping bag broke, spilling the contents on the ground. (Compl., ECF No.
1, ¶ 6.) Foat Leith explains that she placed her black pocket book and other belongings on a wall
to clean up the contents of her shopping bag. (Id.) Foat Leith asserts that non-party Tanya
Denson, then approached, identified a gray pocket book sitting on the same wall as hers, and
offered to help Foat Leith pick up her things. (Id.) As Tanya Denson and Foat Leith stood there,
she alleges that officers with the New Brunswick Police Department, including Detective Dakin,
arrived in a vehicle and placed them both in handcuffs. (Id.)
Foat Leith alleges that she was then placed in a police car, but that when her boyfriend
arrived around the same time, he saw Dakin go through Foat Leith’s pocket book and find
nothing of interest. (ECF No. 1-1, at 1.) Meanwhile, other police officers also detained Tanya
Denson’s brother, non-party Leonard Denson, who apparently began running away when police
arrived. (Id.) Foat Leith claims that Tanya Denson later admitted that Leonard Denson had 20
“decks” of heroin in his hand and another 50 in his anal cavity. (Id.) Foat Leith alleges that
Leonard Denson then directed the officers to a “stash can” in a black bag, which contained
additional drugs. (Id.) Tanya Denson was released, but Foat Leith was taken to the Middlesex
2
County Jail and charged with dealing drugs. (Id.) Foat Leith was ultimately convicted and
sentenced to ten years in prison, with five years of parole ineligibility. (Id.)
B. The Complaint
Foat Leith commenced this action on October 1, 2015 and alleged claims for violations of
her constitutional rights, under 42 U.S.C. § 1983, against the Middlesex County Prosecutor’s
Office, the Somerset County Prosecutor’s Office, the New Brunswick Police Department, Weitz,
and Dakin. (See ECF Nos. 1 & 1-1.) Foat Leith alleges that all of the defendants participated in
a conspiracy to subject her to malicious prosecution. (ECF No. 1 ¶ 7.) She specifically alleges
that Weitz conspired to charge her without supporting evidence, tampered with the evidence in
her case, and perjured himself during trial and pretrial hearings. (Id. ¶ 4(b).) She asserts that
Dakin falsely arrested her, verbally abused her, and participated in the malicious-prosecution
conspiracy by providing false testimony to the grand jury. (Id. ¶ 4(c).) She insists that no one
saw her engaged in any unlawful conduct prior to her arrest, that her fingerprints were not found
on any of the evidence, and that she was carrying a large amount of money to use as a deposit for
a new apartment the next day. (ECF No. 1-1 at 1–2.) As relief, Foat Leith sought compensatory
damages of $25 million, punitive damages of $5 million, and the review and dismissal of her
criminal case. (ECF No. 1 ¶ 7.)
This Court granted Foat Leith leave to proceed in forma pauperis, but Magistrate Judge
Lois H. Goodman terminated an initial motion for appointment of pro bono counsel as
premature. 1 (ECF Nos. 1-2, 2, 3, & 4.) Upon conducting an initial screening of the Complaint,
under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court construed it as asserting claims for
conspiracy, Fourth Amendment violations, malicious prosecution, and giving false testimony.
1
Judge Goodman also denied a second motion for appointment of pro bono counsel as
premature. (See ECF Nos. 10 & 25.)
3
(Op., ECF No. 5, at 6.) The Court then dismissed with prejudice all claims against the
Middlesex County Prosecutor’s Office, the Somerset County Prosecutor’s Office, and the New
Brunswick Police Department, as they are not susceptible to suit under § 1983. (Id. at 6–8.) The
Court further dismissed Foat Leith’s claims to the extent they sought to invalidate her conviction,
noting that such relief may only be sought in federal court by way of a petition for writ of habeas
corpus. (Id. at 8–9.) Examining the Complaint’s remaining substantive allegations, the Court
dismissed, for failure to state a claim, the claims for conspiracy, malicious prosecution, and
presenting false testimony, but permitted the Fourth Amendment claims, for unlawful detention
or false arrest, false imprisonment, and unlawful search, to proceed. (Id. at 10–17; Order, ECF
No. 6.) The Court granted Foat Leith leave to amend those claims that were dismissed for failure
to state a claim. (ECF No. 5 at 10–17; ECF No. 6.)
The clerk issued Foat Leith copies of U.S. Marshals Service Form 285 for service of
process. (ECF No. 7). Foat Leith submitted completed forms to the Marshals Service on July
25, 2016, and the Court issued a summons for each defendant the same day. (ECF Nos. 8 & 9.)
The Marshals Service filed Process Receipt and Return forms on August 8, 2016, indicating that
both Weitz and Dakin were served on August 3, 2016. (ECF Nos. 12 & 13.) On August 12,
2016, however, the Middlesex County Prosecutor’s Office filed a letter with the Court indicating
that it had erroneously accepted service on behalf of Weitz, as he had previously retired. (ECF
No. 16.) After employing procedures to inform the Marshal’s Service of Weitz’s home address,
proper service was eventually completed on June 20, 2017. (See ECF Nos. 20, 22, 23, 24, 32,
33, & 35.)
4
C. The Amended Complaint
Meanwhile, Foat Leith filed an Amended Complaint, presently the operative pleading, on
September 7, 2016, impleading as defendants Weitz and Dakin, as well as “John Doe’s to Be
Name Later.” (Am. Compl., ECF No. 18.) The Amended Complaint alleges that Weitz
[f]acilitated a conspiracy to charge me with crimes he new [sic] i
did not commit by tampering with evidence at the crime scene to
frame me and to bloster [sic] the case to cover his crimes[;] made
up the story that he saw me throw a black bag when all the other
detective said i did not move[;] had me arrested with out any
knowledge a crime was committed or about to be committed.
(Id. ¶ 4(b).) She claims that Dakin
arrested me with out any knowledge a crime had been commited
[sic][;] told me to shut the fuck up black bitch when I told my
friend I was being detained[;] had me removed from the crime
scene in handcuffs with out any other justifiable reason to violate
my constitutional rights afforded me in the U.S. Constitution.
(Id. ¶ 4(c) (capitalization rectified).) Foat Leith asserts that there must have been a conspiracy to
charge her because various witnesses saw Leonard Denson throw a bag to the ground as he ran
from police and otherwise contradicted police testimony during her trial, and because “Weitz
knew she could not defend her self with her past.” (Id. ¶ 6.) Foat Leith seeks $10 million in
compensatory damages, unspecified punitive damages, and that she be given “her day in court so
that [Weitz] and [Dakin] can be held accountable for the unjustifiable criminal babaric [sic]
behavior they participated in.” (Id. ¶ 7.) Foat Leith included with her Amended Complaint
several investigation reports generated by the Office of the Public Defender, which summarize
interviews with witnesses of her arrest. (Id. Exs.)
D. Subsequent Procedure and Motion Practice
On March 20, 2017, as Dakin had not yet entered an appearance in this case, Foat Leith
filed a request for entry of default against him, which was entered on March 27, 2017. (ECF No.
5
26.) Foat Leith then filed, on June 2, 2017, a motion for default judgment against Dakin in the
amount of $100,000, plus interest and costs. 2 (ECF No. 28.) Shortly thereafter, Dakin filed an
opposition and a cross-motion to vacate the entry of default against him, asserting that he had
never been properly served with the Summons and Complaint. (ECF Nos. 30 & 34.) Dakin
further sought dismissal of the action for improper service of process, under Federal Rule of
Civil Procedure 12(b)(2), (4), and (5), and for failure to state a claim, under Rule 12(b)(6). (ECF
Nos. 30 & 34.)
On September 20, 2017, Judge Goodman sua sponte appointed Foat Leith pro bono
counsel for the sole purpose of representing her during a settlement conference. (ECF No. 41.)
An unsuccessful telephonic settlement conference occurred on October 30, 2017, and Foat
Leith’s limited pro bono counsel thereafter withdrew representation. (ECF No. 47.)
Meanwhile, on October 16, 2017, defendant Weitz also filed a motion to dismiss the
Amended Complaint for failure to state a claim, under Rule 12(b)(6). (ECF No. 45.) Foat Leith
filed an opposition to Weitz’s dismissal motion, in which she also requested “a hearing for the
attorney general to recuse themselves from representing Steven Weitz as we plan to call this
office as a witness.” (ECF No. 48).
Thereafter, Foat Leith additionally filed a motion for the appointment of pro bono
counsel. (ECF No. 50.) Dakin and Weitz both oppose the appointment of pro bono counsel.
(ECF Nos. 51 & 52.)
III.
MOTIONS CONCERNING DAKIN’S DEFAULT
The Court first addresses Dakin’s motion to vacate the entry of default against him and
Foat Leith’s motion for default judgment. Under Federal Rule of Civil Procedure 55, the Court
2
For the sake of clarity, the litigants’ arguments concerning the various pending motions are
outlined in conjunction with the Court’s analysis.
6
“may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c); see also Mrs. Ressler’s
Food Prods. v. KZY Logistics, LLC, 675 F. App’x 136, 139 (3d Cir. 2017). In considering
whether to vacate default, a court should consider (1) whether the plaintiff will be prejudiced by
a vacatur of default, (2) whether the defendant has a meritorious defense, and (3) whether the
defendant’s culpable conduct led to the entry of default. See Feliciano v. Reliant Tooling Co.,
691 F.2d 653, 656 (3d Cir. 1982); see also Sourcecorp Inc. v. Croney, 412 F. App’x 455, 459 (3d
Cir. 2011). Vacatur of a mere entry of default requires a less substantial showing than vacatur of
a default judgment. See Feliciano, 691 F.2d at 656.
Dakin asserts that, while default was entered against him on March 27, 2017, he had
never received proper service of process and did not learn of the action until June 8, 2017. (ECF
No. 34 at 3–4.) He alleges that the Summons and Complaint intended for him was erroneously
served upon the Middlesex County Prosecutor’s Office, instead of his employer, the New
Brunswick Police Department. (Id.) Dakin argues that Foat Leith will suffer no prejudice from
vacatur of the default, that he has a meritorious defense, as the action should be barred by Heck
v. Humphrey, and that he was not culpable for the default. In fact, Dakin claims that he filed his
motion to vacate shortly after learning the case exited. (Id. at 5–8.)
Dakin’s argument that the Summons and Complaint were served upon the wrong office is
contradicted by the Process Receipt and Return filed by the Marshals Service, which indicates
that service was to be made upon the New Brunswick Police Department and that, on August 3,
2016, the Summons and Complaint was served on a “Lt. Goldeski, badge #4231.” 3 (ECF No.
3
The Court notes that the Process Receipt and Return listed the Middlesex County Prosecutor’s
Task Force in a section intended for “special instructions or other information” including
“Alternate Addresses.” (See ECF No. 13.) The Court further notes, however, that the Process
Receipt and Return for Weitz, which did specify service at the Middlesex County Prosecutor’s
Office, reports that service occurred on the same date upon an “Agent Daniel Muntone.” (See
ECF No. 12.)
7
13.) Nonetheless, vacatur of the entry of default still appears warranted. The case is still in its
early stages—there has been no discovery and no defendant has yet filed an answer—thus
indicating that Foat Leith will suffer little or no prejudice by permitting Dakin to join the
litigation. Indeed, that the Amended Complaint lists as additional defendants “John Doe’s to Be
Name Later” suggests that she may be contemplating adding new defendants to the case herself.
Furthermore, Dakin does assert a potentially meritorious defense, namely the argument that the
case is barred by Heck v. Humphrey. Dakin’s role in his apparent failure to receive service of
process is unclear, but he has acted promptly in seeking to vacate the entry of default. Applying
these considerations identified by the Third Circuit, Feliciano, 691 F.2d at 656, the Court finds
good cause under Rule 55 to vacate the entry of default against Dakin. As a result, Foat Leith’s
motion for default judgment is denied.
IV.
THE DISMISSAL MOTIONS
A. Dismissal for Improper Service of Process
Dakin argues that lack of proper service of the Summons and Complaint upon him
requires dismissal under Federal Rule of Civil Procedure 12(b)(2), (4), and (5). (ECF No. 34 at
8–12.) Rule 12(b)(2) permits dismissal of claims against a defendant when personal jurisdiction
has not been properly established over that defendant. Fed R. Civ. P. 12(b)(2). Proper service of
process is a prerequisite to the Court’s exercise of personal jurisdiction over a defendant. Omni
Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Rule 12(b)(4) and (5) permits
dismissal for insufficient process or insufficient service of process. Fed. R. Civ. P. 12(b)(4), (5).
As noted above, the factual basis relied upon by Dakin for seeking dismissal on this
ground (i.e., erroneous service of his Summons and Complaint upon the Prosecutor’s Office
rather than the Police Department) is refuted by information ascertained from the case’s docket.
8
(See ECF No. 13.) As his argument for improper service has no factual support, there is no basis
to conclude that service upon Dakin was defective, and the portion of Dakin’s motion seeking
dismissal for improper service is denied.
B. Dismissal Standard Under Rule 12(b)(6)
Both Dakin and Weitz also argue that Foat Leith’s Amended Complaint must be
dismissed for failure to state a claim, under Rule 12(b)(6). In resolving a motion to dismiss
under Rule 12(b)(6), “‘courts 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.’” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see
also Zimmerman v. Corbett, 873 F.3d 414, 417–18 (3d Cir. 2017); Revell v. Port Auth. of N.Y. &
N.J., 598 F.3d 128, 134 (3d Cir. 2010). In other words, a complaint survives a motion to dismiss
if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. 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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir.
2014). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In
addition to the allegations of the complaint, a court may consider matters of public record,
documents specifically referenced in or attached to the complaint, and documents integral to the
allegations raised in the complaint. Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 255 n.5
(3d Cir. 2004).
9
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Glunk v. Noone, 689 F. App’x 137, 139 (3d Cir. 2017) (per
curiam). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
C. Claims Under 42 U.S.C. § 1983
As a general matter, a plaintiff may have a cause of action under 42 U.S.C. § 1983 for
certain violations of constitutional rights. That section provides,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States and that the alleged deprivation was
committed or caused by a person acting under color of state law. See Harvey v. Plains Twp.
Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988).
D. Failure to State a Fourth Amendment Claim
Dakin argues that Foat Leith’s claims are conclusory and that she fails to plead facts
showing that defendants lacked probable cause to arrest her. (ECF No. 34 at 9–10.) He urges
that her assertion that no probable cause existed is refuted by her indictment and conviction and
the fact that Foat Leith never appealed any probable-cause issue. (Id.)
10
While the Amended Complaint could benefit from some additional description of the
underlying facts, the Court is cognizant of its obligation to construe pro se filings liberally. See
Haines, 404 U.S. at 520. The Amended Complaint alleges that Defendants seized and
subsequently detained Foat Leith without any knowledge that she was involved in criminal
activity, and that they subsequently searched her pocket book. (ECF No. 18 ¶¶ 4(b), 4(c), 6.) As
it did on its screening of Foat Leith’s original Complaint, and for the same reasons, the Court
finds that she has adequately stated claims under the Fourth Amendment for unlawful detention
or false arrest, false imprisonment, and unlawful search. (See ECF No. 5 at 11–15.)
E. Applicability of the Heck Bar to the Fourth Amendment Claims
In his motion to dismiss, Weitz argues that Foat Leith’s Fourth Amendment claims must
be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994), as their success would necessarily
impugn the validity of her criminal conviction. (Br. in Supp., ECF No. 45-1, at 5–7.) Weitz
explains that he testified at Foat Leith’s criminal trial that he saw her remove a bag containing
drugs from her pocket book, place it on a wall, and then throw it to the ground. (Id. at 6.) He
contends that Foat Leith’s conviction “was based primarily on Weitz’s sworn testimony as to
what he observed,” and he thus suggests that successfully showing a lack of probable cause
would inherently also invalidate her conviction. (Id. at 6–7.)
Dakin similarly argues that the Fourth Amendment claims are barred by Heck and that
Foat Leith’s failure to appeal the probable-cause issue during her criminal proceedings precludes
her from now arguing that the Defendants lacked probable cause to arrest and detain her. (ECF
No. 34 at 9–10.) Dakin also contends that Foat Leith has failed to show favorable termination of
her underlying criminal proceeding. (Id. at 10.)
11
In Heck, the Supreme Court held that if a § 1983 claim seeks “to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,” the plaintiff may not recover
without showing “that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at
486–87. The action may proceed, however, where, “even if successful, [it] will not demonstrate
the invalidity of any outstanding criminal judgment against the plaintiff.” Id. at 487. The
question in determining whether a claim should be dismissed as barred by Heck is thus whether
the claim’s success would “necessarily imply the invalidity of [the] conviction.” Id. at 487. The
Supreme Court explained that, while a claim should be dismissed if its success would negate an
element of the criminal conviction, more attenuated claims like those “for damages attributable
to an allegedly unreasonable search may lie even if the challenged search produced evidence that
was introduced in a state criminal trial resulting in the section 1983 plaintiff’s still-outstanding
conviction,” because such a claim would not necessarily invalidate the conviction. See id. at
486–87 nn. 6 & 7.
The Court of Appeals for the Third Circuit has indicated that courts considering whether
§ 1983 claims are Heck barred should undertake a fact-intensive inquiry as to each claim to
determine whether its success would necessarily impugn the conviction’s validity. Gibson v.
Superintendent of N.J. Dep’t of Law & Pub. Safety, 411 F.3d 427, 447–49 (3d Cir. 2005),
abrogated on other grounds by Wallace v. Kato, 549 U.S. 384 (2007); see also Strunk v. E.
Coventry Twp. Police Dep’t, 674 F. App’x 221, 223–24 (3d Cir. 2016); Priovolos v. FBI, 632 F.
App’x 58, 60 (3d Cir. 2015). “In situations where the evidence seized as a result of an unlawful
12
search or arrest was used to convict the defendant, district courts examine the factual
circumstances to determine whether doctrines such as independent source, inevitable discovery,
or harmless error would have permitted the introduction of the evidence.” Gibson, 411 F.3d at
448–49; see also Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (“Because a
conviction and sentence may be upheld even in the absence of probable cause for the initial stop
and arrest, . . . Montgomery’s claims for false arrest and false imprisonment are not the type of
claims contemplated by the Court in Heck which necessarily implicate the validity of a
conviction or sentence.”).
Here, the Amended Complaint asserts that Weitz “made up a story that he saw [her]
throw a black bag when all the other detective[s] said [she] did not move [and] had [her] arrested
with out any knowledge a crime was committed or about to be committed.” (ECF No. 18 ¶
4(b).) It further asserts that Dakin “arrested [her] with out any knowledge a crime had been
commited [sic].” (Id. ¶ 4(c).) As noted above, the Court construes the Amended Complaint as
stating claims for Fourth Amendment violations related to Foat Leith’s arrest and detention.
The Fourth Amendment guarantees a right not to be subject to unreasonable seizures.
U.S. Const. amend. IV. A seizure occurs when a government official restrains a person’s
freedom of movement so that the person is not free to leave. Brendlin v. California, 551 U.S.
249, 254 (2007). A seizure is generally permissible only if it is supported by probable cause to
believe the person has committed a crime. Bailey v. United States, 568 U.S. 186, 192 (2013). A
claim for false arrest thus requires that the plaintiff show (1) an arrest and (2) that the arrest was
made without probable cause. James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
Similarly, a claim for false imprisonment requires a showing that (1) the plaintiff was detained
and (2) the detention was unlawful. Id. at 682–83. When a person is arrested without probable
13
cause, a claim for false imprisonment may be asserted as to the detention following that arrest.
See Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); see also Manuel v. City of
Joliet, 137 S. Ct. 911, 919 (2017).
Weitz argues that his testimony that he observed Foat Leith place a black bag on a wall
and then throw it onto a lawn both established the probable cause for her arrest and “was also
crucial in establishing Plaintiff’s custody and control of the bag containing the drugs.” (ECF No.
45-1 at 6.) He thus asserts that Foat Leith’s conviction “was based primarily on Weitz’s sworn
testimony as to what he observed that evening,” and argues that this means that any success on a
Fourth Amendment claim would necessarily impugn the validity of her conviction. (Id. at 6–7.)
While Weitz’s testimony is clearly related both to the justification for the seizure and to
the ultimate conviction, he fails to make a showing at this time that Foat Leith’s success on her
claims would necessarily impugn the validity of her conviction. Weitz asserts that his testimony
was “crucial” to establishing Foat Leith’s possession of drugs and that it was the “primary” basis
for her conviction, but, without access to at least the trial transcript, the Court is unable to
determine that conviction would have been impossible without such testimony. Dakin’s
arguments that probable cause is demonstrated by the indictment and conviction and that Foat
Leith has failed to establish favorable termination of the criminal proceeding are similarly
ineffective to establish that success on her Fourth Amendment claims would necessarily impugn
her conviction.
Without a basis to determine that success on her claims would inherently contradict her
conviction, the Court cannot presently dismiss Foat Leith’s Fourth Amendment claims as barred
by Heck. Defendants may, of course, raise this issue again in a properly filed and properly
supported motion for summary judgment.
14
F. Qualified Immunity
Weitz also argues that the Fourth Amendment claims must be dismissed on the basis of
qualified immunity. (ECF No. 45-1 at 7–11.) He contends that Foat Leith has failed to show
that any clearly established right was violated, since she has not identified cases finding Fourth
Amendment violations with facts similar to those surrounding her arrest. (Id. at 9–11.) He also
urges that his trial testimony “clearly establishes that there was probable cause to arrest [Foat
Leith],” adding that she admitted that she had a black bag that she set on a wall and that the
grand jury’s indictment constitutes prima facie evidence of probable cause. (Id. at 9–10.)
In opposition, Foat Leith argues that she was not observed engaging in any illegal activity
and that no other officer appeared to corroborate Weitz’s testimony at her trial. (ECF No. 48 at
2–3, 4.) She urges that Leonard Denson ran away with drugs in his possession when the police
arrived and that the bags he had matched those in the “stash can” that were attributed at trial to
Foat Leith. (Id. at 3–4.) She contends that dismissal should not be granted as “there is enough
objective evidence to bind this case over for trial.” (Id. at 4 (capitalization rectified).)
“Qualified immunity is ‘an entitlement not to stand trial or face the burdens of
litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). Under this doctrine, a government official is immune from claims for damages
unless, interpreting the allegations most favorably to the plaintiff, they show (1) that the official
violated the plaintiff’s constitutional rights and (2) that the constitutional right violated was
clearly established. Id. at 201; see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(“[G]overnment officials performing discretionary functions . . . are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known.”). A right is considered
15
clearly established if it is “sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal
quotation marks and alterations omitted); see also Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
A right is thus clearly established where existing precedent has “‘placed the statutory or
constitutional question beyond debate,’” though this “‘do[es] not require a case directly on
point.’” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. Al-Kidd, 563 U.S.
731, 741 (2011)). “[I]n an obvious case, these standards can ‘clearly establish’ the answer, even
without a body of relevant case law.” Brosseau v. Haugen, 543 U.S. 194, 200 (2004); see also
Hope v. Pelzer, 536 U.S. 730, 738 (2002).
It is well established that a search or seizure must be justified from the start, and that the
scope of search or seizure must be reasonably related to the underlying justification. See Terry v.
Ohio, 392 U.S. 1, 19–20 (1968). Thus, a police officer “must have a particularized and objective
basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez,
449 U.S. 411, 417–18 (1981). Accordingly, a person may bring a claim for false arrest or false
imprisonment if that person was subjected to an arrest or detention that is not legally justified.
See James, 700 F.3d at 680, 682–83.
Foat Leith’s Amended Complaint alleges that Weitz “had [her] arrested with out any
knowledge a crime was committed or about to be committed,” (ECF No. 18 ¶ 4(b)), and, on a
motion to dismiss, this factual allegation must be construed as true, see Fowler, 578 F.3d at 210.
While the Court acknowledges Weitz’s argument that there typically must be a case in which
constitutional violations were found upon specifically similar circumstances, the cases he cited in
support addressed largely what circumstances (generally presented on motions for summary
judgment) may create probable cause or what conduct is permitted in the wake of finding
16
probable cause. See White v. Pauly, 137 S. Ct. 548, 549–53 (2017) (considering what
circumstances justify use of deadly force); Mullenix, 136 S. Ct. at 308–12 (considering what
circumstances in a high-speed chase justify use of deadly force); Al-Kidd, 563 U.S. at 741–42
(assessing novel use of material-witness warrants); Culver v. Armstrong, 832 F.3d 1213, 1218–
20 (10th Cir. 2016) (considering whether substantial facts created probable cause for interference
with peace officer); Graham v. Gagnon, 831 F.3d 176, 184–88 (4th Cir. 2016) (considering
whether extensive facts established probable cause to suspect obstruction of justice). Unlike
those cases, the facts underlying this one remain largely contested and otherwise unestablished,
thus preventing, at this time, an assessment with the same level of granularity. While Weitz
contends that Foat Leith was in fact engaged in conduct that created probable cause for arrest,
this presents a credibility contest that cannot yet be resolved. The most specific question thus
derivable from the Amended Complaint and Weitz’s dismissal motion is thus simply whether a
lawful warrantless arrest may occur of a pedestrian who has engaged in no conduct indicating
unlawful activity. Accepting these allegations as true, such circumstances present the type of
“obvious case” noted by the Supreme Court in Brosseau, which renders unnecessary the specific
identification of a factually similar case in which rights violations were found. See Brosseau,
543 U.S. at 200. As such, the Court rejects Weitz’s argument in this regard.
G. Dismissal of Malicious-Prosecution Claim
Dakin argues that Foat Leith’s malicious-prosecution claim must be dismissed as she has
failed to show favorable termination of her underlying criminal matter. (ECF No. 34 at 10–11.)
Weitz also contends that any malicious-prosecution claim, insofar as one is reasserted, should be
dismissed. (ECF No. 45-1 at 6 n.2.) The Court dismissed without prejudice the maliciousprosecution claim in Foat Leith’s original Complaint for failure to plead favorable termination of
17
her criminal charges. (ECF No. 5 at 15–17.) To the extent that Foat Leith’s Amended
Complaint seeks to re-assert a malicious-prosecution claim, that claim is again dismissed, as she
has included no additional facts tending to show favorable termination.
H. Failure to State a Conspiracy Claim
Finally, Weitz argues that Foat Leith’s attempt to plead a claim for conspiracy is purely
conclusory. (ECF No. 45-1 at 11–12.) He contends that the Amended Complaint fails to show
an underlying constitutional violation and fails to allege facts that would support finding the
elements of a conspiracy: agreement and concerted action. (Id.) Dakin similarly argues that the
conspiracy claim must be dismissed for failure to state a claim. (ECF No. 34 at 11–12.)
In opposition, Foat Leith urges that Weitz’s testimony at her criminal trial was an
“intentional well thought out fabricated claim.” (ECF No. 48 at 3 (capitalization rectified).) She
opines that Weitz “lied and abused his authority by knowingly fabricating the facts that led to
[her] arrest and conviction.” (Id. at 4 (capitalization rectified).)
As recounted above, the Court previously dismissed, upon screening, the conspiracy
claims Foat Leith alleged in her original Complaint for failure to allege facts showing an
agreement and concerted action by the defendants. (ECF No. 5 at 10–11; ECF No. 6.) As the
Court noted in that opinion, a § 1983 claim for civil-rights conspiracy must show a “meeting of
the minds” with facts demonstrating agreement and concerted action. See Startzell v. City of
Phila., 533 F.3d 183, 205 (3d Cir. 2008). The conspiracy allegations in the Amended Complaint
are again conclusory. Foat Leith alleges simply that Weitz “facilitated a conspiracy to charge
[her] with crimes he new [sic] I did not commit by tampering with evidence” and that her
prosecution was “brought about by a conspiracy by all officers at the scene who chose to remain
silent and not call [Weitz] out on his fabricated story.” (ECF No. 18 ¶¶ 4(b), 6.) Foat Leith does
18
not specifically identify Dakin in relation to any alleged conspiracy. (See id. ¶¶ 4(c), 6.) As in
the original Complaint, Foat Leith includes no factual allegations that support a claim for
conspiracy, and the motions to dismiss will be granted as to this claim.
I. Request for Disqualification of Counsel
As part of her opposition papers, Foat Leith also makes a request for “a hearing for the
attorney general to recuse themselves from representing [Weitz] as we plan to call this office as a
witness.” (ECF No. 48 at 5.) The Court treats this as an application to disqualify Weitz’s
counsel.
Courts generally disfavor motions to disqualify counsel, and “grant them only when
absolutely necessary.” Maldonado v. N.J. ex rel. Admin. Office of Courts, 225 F.R.D. 120, 136–
37 (D.N.J. 2004); see also Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1114
(D.N.J. 1993). The proponent of disqualification bears the burden of showing either that the
counsel in question has violated the Rules of Professional Conduct or, otherwise that “sufficient
doubt exists as to the propriety of the representation.” Kaselaan & D’Angelo Assocs. v.
D’Angelo, 144 F.R.D. 235, 238 (D.N.J. 1992); see also Dantinne v. Brown, Civ. No. 17-0486
(JHR/JS), 2017 WL 2766167, at *2 (D.N.J. June 23, 2017).
Foat Leith seeks disqualification of the New Jersey Attorney General’s Office on the
basis that she wants “to call this office as a witness.” (ECF No. 48 at 5.) New Jersey Rule of
Professional Conduct 3.7 does generally preclude an attorney from appearing as an advocate “at
a trial in which the lawyer is likely to be a necessary witness.” N.J. Rules of Prof’l Conduct r.
3.7 (2016). Nevertheless, there is no indication that any employee of the Attorney General’s
Office could be called as a relevant witness, much less as a necessary witness. Foat Leith makes
no allegation that any member of that office participated in or otherwise witnessed any of the
19
events underlying this case. Consequently, her request for a hearing regarding the recusal of the
Attorney General’s Office is denied.
V.
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL
Generally, civil litigants have no constitutional or statutory right to counsel. See United
States v. Zoebisch, 586 F. App’x 852, 856 (3d Cir. 2014). In some cases, the need for
representation is great, and thus 28 U.S.C. § 1915(e)(1) grants district courts broad discretion to
request the appointment of attorneys to represent indigent civil litigants in appropriate
circumstances. The Court recognizes, however, that “volunteer lawyer time is extremely
valuable” and, for that reason, that “district courts should not request counsel . . .
indiscriminately.” Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). The Court must bear in
mind “the significant practical restraints on the district court’s ability to appoint counsel: . . . the
lack of funding to pay appointed counsel[] and the limited supply of competent lawyers who are
willing to undertake such representation without compensation.” Id.
When evaluating an application for the appointment of pro bono counsel, the Court
assesses seven factors originally identified by the United States Court of Appeals for the Third
Circuit in Tabron v. Grace, 6 F.3d 147:
1. the potential merit of the applicant’s legal position;
2. the applicant’s ability to present the case without counsel;
3. the complexity of the legal issues involved;
4. the extent of factual discovery and the applicant’s ability to investigate and to comply
with discovery rules;
5. the extent to which the case may turn on credibility determinations;
6. whether expert testimony will be needed; and
20
7. whether the applicant can afford paid counsel.
See Pricaspian Dev. Corp. v. Martucci, No. 11-1459, 2011 WL 2429315, at *2 (D.N.J. June 13,
2011) (citing Tabron, 6 F.3d at 155, 158); Prudential Ins. Co. of Am. v. Dobson, No. 08-3951,
2009 WL 115966, at *1–2 (D.N.J. Jan. 16, 2009) (same). A finding of potential merit of the
applicant’s arguments is a threshold determination that must be established before considering
any other factors. See Dobson, 2009 WL 115966 at *2; Protameen Chems., Inc. v. Chinchilla,
No. 05-3383, 2007 WL 174163, at *1 (D.N.J. Jan. 22, 2007).
In support of her motion for appointment of pro bono counsel, Foat Leith contends that
her claims have arguable merit, that she cannot proficiently argue her claims, as she has no legal
training, has only limited access to the prison law library, and cannot conduct meaningful
investigations or subpoena relevant witnesses, that she cannot afford to retain private counsel,
that her claims will involve credibility determinations, including the “[c]redibility of the jury,”
that she may require expert testimony, and that appointment of counsel to represent her would
help limit proceedings to relevant issues. (Certif. in Supp., ECF No. 50-1, at 2.)
Dakin filed a lengthy brief in opposition to Foat Leith’s motion for the appointment of
counsel. (ECF No. 51.) He argues that Foat Leith’s claims are barred by Heck, and thus lack
arguable merit, which must be shown as a threshold for any consideration of a request for pro
bono counsel. (Id. at 9–11.) Dakin argues that, even assuming arguable merit, the other Tabron
factors weight against appointing pro bono counsel, pointing out that as Foat Leith has
demonstrated an ability to present her case, that the case is not complex, and that it will likely not
require significant factual investigation or expert testimony. (Id. at 11–15.)
Weitz filed a letter indicating his desire to join in Dakin’s opposition to the motion and
adopted his arguments. (ECF No. 52.)
21
Applying the Tabron test, the Court finds that Foat Leith fails to show that appointment
of pro bono counsel is presently warranted. As the Court has not yet been presented with a
proper record to determine whether the case should be barred by Heck, it presumes that the case
has arguable merit. Nonetheless, on balance, the remainder of the Tabron factors weigh against
appointing pro bono counsel at this time. Foat Leith has demonstrated an ability to sufficiently
present her case, the issues do not appear to be complex, and the Court currently sees no great
need for extensive fact investigation or expert testimony. Thus the only factors that weigh in
Foat Leith’s favor are her apparent inability to retain paid counsel and that the case’s outcome,
were it to proceed to trial, would likely depend largely on credibility determinations. The
proceeding is not yet at that stage. In the event that a trial or adversarial hearing becomes
necessary, the Court may sua sponte reconsider Foat Leith’s application for pro bono counsel.
VI.
CONCLUSION
For the foregoing reasons, the pending motions in this action are resolved as follows:
Foat Leith’s motion for default judgment against Dakin, (ECF No. 28), is DENIED.
Dakin’s motion for vacatur of default and for dismissal of the Amended Complaint, (ECF
No. 30) is GRANTED IN PART, insofar as the entry of default against Dakin, (ECF No. 26), is
VACATED, Dakin’s proposed Answer shall be deemed filed, and the claims for conspiracy and,
to the extent asserted, malicious prosecution are DISMISSED WITHOUT PREJUDICE for
failure to state a claim, and the motion is otherwise DENIED.
Weitz’s motion to dismiss the Amended Complaint, (ECF No. 45), is GRANTED IN
PART, insofar as the claims for conspiracy and, to the extent asserted, malicious prosecution are
DISMISSED WITHOUT PREJUDICE for failure to state a claim, and the motion is otherwise
DENIED.
22
Foat Leith’s request for a hearing concerning recusal of Weitz’s counsel, (ECF No. 48 at
5), which the Court construes as a motion to disqualify counsel, is DENIED.
Foat Leith’s motion for appointment of pro bono counsel, (ECF No. 50), is DENIED
WITHOUT PREJUDICE.
An appropriate order follows.
DATED: May 24, 2018
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?