ALLEN v. NEW JERSEY STATE POLICE et al

Filing 20

OPINION filed. Signed by Judge Brian R. Martinotti on 3/7/2017. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
RA-KING ALLEN,
:
:
Civil Action No. 16-1660-BRM-DEA
Plaintiff,
:
:
v.
:
:
NEW JERSEY STATE POLICE, et al.,
:
:
OPINION
Defendants.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion to Dismiss the Complaint (ECF No. 1) of plaintiff Ra-King
Allen (“Plaintiff”) filed by New Jersey State Police, Superintendent Joseph R. Fuentes, and State
Trooper Richard Nugnes (collectively, the “State Defendants”) (ECF No. 12). Plaintiff opposes
this motion. (ECF No. 13.) Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. For the
reasons set forth below, the State Defendants’ motion is GRANTED.
BACKGROUND 1

I.
A.

FACTUAL BACKGROUND

This action arises out of a motor vehicle stop that occurred on April 28, 2008 in Warren
County, New Jersey. (ECF No. 1 at ¶¶ 13-14.) Plaintiff was the passenger in a vehicle being driven
by his uncle that was stopped for a motor vehicle violation by the New Jersey State Police. (Id. at
¶¶ 14-15.) Defendant State Trooper Richard Nugnes (“Nugnes”) was among the troopers involved
in the stop. (Id.) After determining both the driver and Plaintiff had valid outstanding warrants,

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The facts set forth in this Opinion are taken from Plaintiff’s Complaint (ECF No. 1), the parties’
briefs and related filings.

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both individuals were placed under arrest. See State of New Jersey v. Allen, 2011 N.J. Super.
Unpub. LEXIS 2445, *2 (N.J. App. Div. Sept. 23, 2011). 2 During a search incident to those arrests,
marijuana was found on Plaintiff’s person. Id. Nugnes then directed the car to be towed and a tow
truck driver, Joseph Sense (“Sense”), arrived at the scene. (ECF No. 1 at ¶¶ 15-16; see also ECF
No. 12-3.) At some point after Sense arrived, the vehicle’s trunk was inadvertently opened and
Nugnes discovered a quantity of drugs and drug paraphernalia inside a container in the trunk. (ECF
No. 1 at ¶¶ 17-20.) As a result, Plaintiff was arrested for and charged with possession of a
controlled dangerous substance. (Id. at ¶ 22.) Plaintiff alleges “[t]his contraband was not in plain
view.” (Id. at ¶ 21.)
At the trial court, Plaintiff made a motion to suppress the evidence as being illegally seized
without a warrant. (Id. at ¶ 23.) The trial judge denied the motion and Plaintiff pled guilty. (Id. at
¶ 24.) As a result of his guilty plea, Plaintiff received a sentence of fourteen (14) years
imprisonment with a fifty-seven (57) month period of parole ineligibility. (Id. at ¶ 25.) On
September 23, 2011, the Appellate Division affirmed the trial court’s denial of Plaintiff’s motion
to suppress. (Id. at ¶ 26.) Plaintiff appealed to the New Jersey Supreme Court and, on December
6, 2013, the matter was remanded back to the trial court for additional findings of fact. (Id. at ¶
27.)
On remand, the trial court concluded the trunk was opened inadvertently by Sense, without
direction by Nugnes. (Id. at ¶ 28; see also ECF No. 12-3 at 4.) The trial court further concluded

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While courts typically cannot consider matters outside of the pleadings when deciding a motion
to dismiss, there is an exception to this general rule when a document is integral to, or explicitly
relied upon in, the complaint. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410,
1426 (3d Cir. 1997) (citation omitted). Plaintiff expressly refers to the Appellate Division’s
September 23, 2011 decision in his Complaint (ECF No. 1 at ¶ 26) and, therefore, the Court may
rely upon that decision when deciding this motion.
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Nugnes saw something suspicious in the trunk, asked Sense not to close the trunk lid, and then
leaned over and handled whatever was in the trunk. (Ibid.) The trial court ultimately found,
however, the drugs and drug paraphernalia in question were not directly visible prior to Nugnes’s
intrusion into the trunk. (Id.) As a result of those findings, on June 23, 2015, after he had been
incarcerated for fifty-seven (57) months, the New Jersey Supreme Court vacated Plaintiff’s
conviction. (ECF No. 1 at ¶¶ 30-31.)
Plaintiff commenced this action on March 24, 2016, asserting claims against the State
Defendants for: (1) violation of his Fourth Amendment right to be free from unreasonable searches
and seizure, pursuant to 42 U.S.C. § 1983 and Art. 1 s. 7 of the New Jersey State Constitution; (2)
failure to implement appropriate policies, customs and practices, pursuant to 42 U.S.C. § 1983; (3)
negligent hiring and retention; and (4) malicious prosecution. (ECF No. 1 at 4-7.) The State
Defendants now move to dismiss the Complaint in its entirety, pursuant to Fed. R. Civ. P. 12(b)(6).
(ECF No. 12.)
II.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is

“required to accept as true all factual allegations in the complaint and draw all inferences in the
facts alleged in the light most favorable to the [plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed
factual allegations.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the

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factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III.

DECISION
The State Defendants argue Plaintiff’s claims under 42 U.S.C. § 1983 and for negligent

hiring should be dismissed because they are all barred by a two-year statute of limitation. (ECF
No. 13-1 at 6-7.) The State Defendants contend these claims began to accrue on April 28, 2008,
the date Plaintiff was searched, arrested and charged with “possession of a controlled dangerous
substance.” (Id. at 8 (citing ECF No. 1 at ¶ 22).) At a minimum, the State Defendants argue,
Plaintiff was aware of his alleged injury in 2010 when he made a motion to suppress the evidence

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as being illegally seized without a warrant. (Id. at 9.) Finally, the State Defendants argue Plaintiff’s
claim for malicious prosecution fails because that claim cannot be based solely on an allegedly
unconstitutional search and seizure. (Id. at 10.) The State Defendants assert Plaintiff’s conviction
was based on an intervening independent judicial review that did not suppress evidence obtained
by an unlawful search or seizure, and that review serves as a superseding cause of liability that
breaks the chain of causation for the purpose of § 1983 liability. (Id. (citing Egervary v. Young,
366 U.S. 238, 250-51 (3d Cir. 2004)).)
In opposition, Plaintiff does not contest his claims are governed by a two-year statute of
limitations. Rather, Plaintiff argues the statutes of limitations for his illegal search and seizure,
failure to implement appropriate policies, and negligent hiring and retention claims were tolled
until his conviction was vacated. (ECF No. 13 at 4.) Relying on Heck v. Humphrey, 512 U.S. 477
(1994), Plaintiff argues he “could not bring this action until his conviction was vacated” and,
“[t]hus[,] the 2-year statute of limitations did not begin to run until June 23, 2015, and Plaintiff’s
action is timely.” (Id. at 5.) With respect to his malicious prosecution claim, Plaintiff argues
“Nugnes engaged in deceit during his suppression hearing testimony, which led to the judicial
decision. Therefore, there is no valid intervening cause, and the malicious prosecution cause of
action cannot be dismissed.” (Id. at 6.) Specifically, Plaintiff contends that Nugnes’s testimony
often contradicted with Sense’s testimony at the initial suppression hearing and subsequently on
remand. (Id.) Plaintiff points to the trial judge’s opinion on remand, in which he stated that
Nugnes’s testimony was “evasive,” “imprecise” and “equivocal,” and that “[his] manner did not
inspire confidence in his concern for truthfulness and accuracy.” (Id. at 14.)

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A.

Plaintiff’s Section 1983 and Negligent Hiring Claims (Counts I – III)

“Section 1983 provides a federal cause of action, but in several respects relevant here
federal law looks to the law of the State in which the cause of action arose. This is so for the length
of the statute of limitations: It is that which the State provides for personal-injury torts.” Wallace
v. Kato, 549 U.S. 384, 387 (2007) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989); and
Wilson v. Garcia, 471 U.S. 261, 279-80 (1985)). “Thus, a section 1983 claim arising in New Jersey
has a two-year statute of limitations.” Dique v. New Jersey State Police, 603 F.3d 181, 185 (2010)
(citations omitted) (“A section 1983 claim is characterized as a personal-injury claim and thus is
governed by the applicable state’s statute of limitations for personal-injury claims.”).
However, “the accrual date of a § 1983 cause of action is a question of federal law that is
not resolved by reference to state law” and is instead governed by “federal rules conforming in
general to common-law tort principles.” Wallace, 549 U.S. at 387 (citing Heck, 512 U.S. at 483;
and Carey v. Piphus, 435 U.S. 247, 257-58 (1978)). “Under those principles, it is ‘the standard
rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when
the plaintiff can file suit and obtain relief.” Id. (citing Bay Area Laundry and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)) (internal marks and citations
omitted).
In his complaint, Plaintiff states that he was charged with “possession of a controlled
dangerous substance” as a result of his arrest on April 28, 2008. (ECF No. 1 at ¶ 22.) Thus,
Plaintiff’s cause of action for unreasonable search and seizure began to accrue on that date. Indeed,
in his Complaint, Plaintiff alleges “[o]n April 21, 2008, Defendants violated Plaintiff’s right to be
free from unlawful searches and seizures” when “Defendants performed an unlawful search
resulting in Plaintiff’s arrest.” (Id. at ¶¶ 38-39.) Because Plaintiff filed his Complaint nearly seven

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(7) years later, his unreasonable search and seizure claim is barred by the applicable two-year
statute of limitations.
The same analysis applies to Plaintiff’s Section 1983 claim for failure to implement
appropriate policies, customs and practices. Plaintiff’s Complaint alleges that “[o]n April 21, 2008
until June 23, 2015, Defendants deprived Plaintiff, under color of statute, ordinance, regulation,
custom or usage, of rights, privileges, and immunities secured to Plaintiff by the Fourth and
Fourteenth Amendments to the Constitution of the United States” and New Jersey State
Constitution. (ECF No. 1 at 36.) These deprivations allegedly occurred when the State Defendants
“implicitly or explicitly adopted and implemented careless and reckless policies, customs, or
practices, that include, among other things, allowing employees to conduct warrantless and
unlawful searches.” (Id. at ¶ 47.) Plaintiff further alleges their subsequent failure “to adequately
train and supervise” Nugnes “amounts to a deliberate indifference to the rights of the Plaintiff to
be free from unlawful searches and seizures.” (Id. at 48.)
For the same reasons set forth above, this claim began to accrue at the time of his search
on April 21, 2008, the date on which the State Defendants’ allegedly “wrongful act or omission
result[ed] in damages” to Plaintiff. Wallace, 549 U.S. at 391. In fact, Plaintiff’s opposition
concedes this point. (See ECF No. 13 at 2 (“All the causes of action arise out of the events of a
traffic stop which took place on April 28, 2008.”).) At the latest, however, Plaintiff was aware of
his alleged injury (i.e., being subjected to an unreasonable search and seizure), at the time he made
a motion to suppress the evidence as being illegally seized without a warrant some time prior to

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September 23, 2011. 3 To be timely, then, Plaintiff’s claim for failure to implement appropriate
policies needed to be filed, at the latest, by September 23, 2013, but it was not.
Likewise, Plaintiff’s negligent hiring claim suffers the same fate. Plaintiff alleges “Nugnes
is an unfit employee, who performed unlawful searches and seizures” because the State Defendants
“failed to train, supervise, or remove Defendant Nugnes.” (ECF No. 1 at ¶¶ 54-58.) Nugnes’s
alleged wrongdoing was his alleged performance of “unlawful searches and seizure.” Here, the
“wrongful act or omission resulting in damages” to Plaintiff, see Wallace, 549 U.S. at 391,
occurred on April 28, 2008, when he was allegedly unlawfully searched and seized. It necessarily
follows that any failure to train, supervise, or remove Nugnes must also have occurred before that
date. Plaintiff’s negligent hiring claim began to accrue nearly eight (8) years before he filed his
complaint and, therefore, it is time-barred by New Jersey’s two-year statute of limitations. See
N.J.S.A. 2A:14-2.
i.

Whether Heck Tolling Applies

As noted above, Plaintiff contends his Section 1983 and negligent hiring causes of action
are tolled “[u]nder Heck, [because] Plaintiff could not bring this action until his conviction was
vacated.” (ECF No. 13 at 5.) Plaintiff’s reliance on Heck, decided before Wallace, and Gibson v.
Superintendent of New Jersey Department of Law & Public Safety, 411 F.3d 427 (3d Cir. 2005),
which was expressly abrogated by Dique, is entirely misplaced.
The petitioner in Wallace, an arrestee, brought a § 1983 action against city police detectives
alleging, among other things, unlawful arrest. 549 U.S. at 387. The arrest occurred in January 1994
and petitioner was subsequently charged and convicted of murder, but the charges were ultimately

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Plaintiff’s Complaint does not identify the date his motion to suppress was made. However, the
Appellate Division affirmed the trial court’s denial of that motion on September 23, 2011.
Therefore, logic dictates the motion was filed sometime prior to September 23, 2011.
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dropped in April 2002. Id. at 386-87. In April 2003, petitioner filed his § 1983 suit against the city
and several of its officers, seeking damages for, among other things, his unlawful arrest in violation
of the Fourth Amendment. Id. at 387. The district court granted summary judgment in favor of the
city and the Seventh Circuit affirmed, finding the petitioner’s suit was time-barred “because his
cause of action accrued at the time of his arrest, and not when his conviction was later set aside.”
Id. The Supreme Court agreed because “[t]here can be no dispute that petitioner could have filed
suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary
detention, so the statute of limitations would normally run from that date.” Id. at 388. The Supreme
Court expressly rejected the same argument raised by Plaintiff here: “that the date of his release
from custody must be the relevant date in the circumstances of the present suit, since he is seeking
damages up to that time.” Id. at 391. Rather, the Supreme Court explained that Fourth Amendment
causes of action under § 1983 “accrues, and the statute of limitations commences to run, when the
wrongful act or omission results in damages. The cause of action accrues even though the full
extent of the injury is not then known or predictable.” Id. (citation omitted). “Were it otherwise,
the statute would begin to run only after a plaintiff became satisfied that he had been harmed
enough, placing the supposed statute of repose in the sole hands of the party seeking relief.” Id.
In doing so, the Wallace Court made clear that its ruling in Heck did not directly affect
statute of limitations periods for non-malicious prosecution § 1983 actions, stating: “the Heck rule
for deferred accrual is called into play only when there exists ‘a conviction or sentence that has
not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” 549 U.S. at 393-94.
Indeed, the Supreme Court refused to adopt “a principle that goes well beyond Heck: that an action
which would impugn an anticipated future conviction cannot be brought until that conviction
occurs and is set aside” because “[t]he impractically of such a rule should be obvious.” Id. at 393

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(“We are not disposed to embrace this bizarre extension of Heck.”). Although mindful of the
“complication” that “arises from the fact that § 1983 actions, unlike the tort of malicious
prosecution . . . sometimes accrue before the setting aside of – indeed, even before the existence
of – the related criminal conviction,” the Supreme Court expressly refused to adopt a federal tolling
rule to apply to related to § 1983 claims when the Heck bar affects the accrual date for a related
malicious prosecution claim. Id. at 394-95 (“Under such a regime, it would not be known whether
tolling is appropriate by reason of the Heck bar until it is established that the newly entered
conviction would be impugned by the not-yet-filed, and thus utterly indeterminate, §1983 claim.”).
To the contrary, the Supreme Court stated in dicta that a federal tolling rule in relation to Heck
“would hardly be desirable” because “[d]efendants need to be on notice to preserve beyond the
normal limitations period evidence that will be needed for their defense.” Id. at 395.
In Dique, the Third Circuit was faced with a similar situation. The plaintiff in Dique was
arrested in 1990, after having been the victim of racial profiling. 603 F.3d at 183. Nine years later,
in June 1999, the plaintiff was convicted in state court on drug-related charges, arising from the
stop, and sentenced to fifteen years in prison. Id. at 183-84. In April 2002, the State moved to
vacate his conviction and dismiss the indictment as a result of the racial profiling. Id. at 184. “In
February 2004, Dique filed suit based on the January 1990 traffic stop, alleging violations of
federal law, including 42 U.S.C. §§ 1983 and 1985, and of state law.” Id. at 184 (noting the section
1983 claims were for false arrest and selective-enforcement under the Fourth and Fourteenth
Amendments, respectively). The district court granted summary judgment in favor of the
defendants, finding Dique’s claims time-barred by the applicable statute of limitations, and the
Third Circuit affirmed. Id. The Third Circuit found that the Supreme Court’s decision in Wallace,
“which clarified the Heck rule, extends to Fourth Amendment selective-enforcement claims and

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thus overrides [its] decision in Gibson.” Id. The Third Circuit interpreted Wallace as “refus[ing]
to extend Heck to a § 1983 claim for false arrest in which there was no outstanding conviction at
the time of the accrual, i.e., the arrest” and also “clarify[ying] that the Heck bar is applicable only
when, at the time the § 1983 suit would normally accrue, there is an existing criminal conviction.
. . .” Dique, 603 F.3d at 187 (citations omitted). “Under Wallace then, the statute of limitations
‘began to run at the time Dique became detained pursuant to legal process.” Id. at 188. The Third
Circuit reasoned:
When Dique was stopped on the New Jersey Turnpike, as the Court in Wallace
stated, “there was in existence no criminal conviction that the [§ 1983] cause of
action would impugn; indeed, there may not even have been an indictment.” 549
U.S. at 393. Nor, at that time, could one determine if there would ever be an
indictment or a conviction – this is an important distinction from a Heck-type case
in which malicious prosecution involves the indictment and trial process, along
with the conviction.
Id.
Like the plaintiffs in Wallace and Dique, extending Heck to a § 1983 claim in which there
was no outstanding conviction at the time of the accrual, i.e., the allegedly unlawful search and
resulting arrest, would be improper. See Dique, 603 F.3d at 187 (citing Wallace, 549 U.S. at 393).
When Plaintiff was stopped, searched and arrested “there was in existence no criminal conviction
that the § 1983 cause of action would impugn; indeed, there may not even have been an indictment.
Nor, at that time, could one determine if there would ever be an indictment or a conviction.” Id. at
188. The “Heck bar is applicable only when, at the time the § 1983 suit would normally accrue,
there is an existing criminal conviction.” Id. at 187. Because no such conviction existed at the time
of Plaintiff’s search, Heck is inapplicable.
Plaintiff has offered no other basis for why his claims should be tolled and, based on a
review of the record, this Court concludes none exists.

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B.

Plaintiff’s Malicious Prosecution Claim (Count IV)

It is well-settled that “‘[t]he evil of an unreasonable search or seizure is that it invades
privacy, not that it uncovers crime, which is no evil at all.’” Hector v. Watt, 235 F.3d 154, 157 (3d
Cir. 2000) (citing Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999)). As such,
“[v]ictims of unreasonable searches or seizures may recover damages directly related to the
invasion of their privacy – including (where appropriate) damages for physical injury, property
damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result
from the discovery of incriminating evidence and consequent criminal prosecution.’” Id.
Moreover, the Third Circuit “adhere[s] to the well-settled principle that, in situations in
which a judicial officer or other independent intermediary applies the correct governing law and
procedures but reaches an erroneous conclusion because he or she is misled in some manner as to
the relevant facts, the causal chain is not broken and liability may be imposed upon those involved
in making the misrepresentations or omissions.” Egervary v. Young, 366 F.2d 238, 250 (3d Cir.
2004) (citing Hand, 838 F.2d at 1427-28; and Hector, 235 F.3d at 164 (citing cases)). There is,
however, “a distinction between that situation and . . . [one] where the actions of the defendants,
while clearly a cause of the plaintiff’s harm, do not create liability because of the intervention of
independent judicial review, a superseding cause.” Id. Thus, where “the judicial officer is provided
with the appropriate facts to adjudicate the proceeding but fails to properly apply the governing
law and procedures, such error must be held to be a superseding cause, breaking the chain of
causation for purposes of § 1983 . . . liability.” Id. at 250-51 (citations omitted).
In his Complaint, Plaintiff alleges a criminal prosecution was instituted against him and
later terminated in his favor by dismissal. (ECF No. 1 at ¶¶ 64-65.) Plaintiff contends “[t]here was
an absence of probable cause to commence the proceeding” and, further, “[t]here was actual malice

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as evidenced by the lack of probable cause for the charge.” (Id. at ¶¶ 66-67.) The State Defendants
argue that, because Plaintiff’s conviction was based on an intervening independent judicial review
that did not suppress evidence obtained by an unlawful search or seizure, that review serves as a
superseding cause that breaks the chain of causation for the purposes of § 1983 liability. (ECF No.
12-1 at 11.) In opposition, Plaintiff argues, for the first time, “Nugnes engaged in deceit during his
suppression hearing testimony, which led to the judicial decision. Therefore, there is no valid
intervening cause, and the malicious prosecution cause of action cannot be dismissed.” (ECF No.
13 at 6.)
Plaintiff’s Complaint, however, is silent as to any alleged deceit. Indeed, the Complaint
fails to plead any facts at all relating to any conduct by Nugnes at trial or any hearing, let alone
showing any of the State Defendants coerced or deceived any of the State courts. Instead,
Plaintiff’s malicious prosecution claim, as pled in his Complaint, is based entirely on Nugnes
allegedly unlawful search and seizure of contraband from the automobile, or other actions at the
scene. (See generally ECF No. 1; see also ECF No. 13 at 2 (“All the causes of action arise out of
the events of a traffic stop which took place on April 21, 2008.”).) To the extent Plaintiff’s
malicious prosecution claim is premised on the State Defendants’ alleged deceit or coercion, the
Complaint fails to satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b). Although
Plaintiff raises, for the first time, new allegations relating to Nugnes’s alleged conduct during the
suppression hearing and trial, “it is axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.” Com. Of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d
173, 181 (3d Cir. 1988). Since Plaintiff failed to plead these facts in his Complaint, the Court will
not consider them. See Anderson v. DSM N.V., 589 F. Supp. 2d 528, 534 (D.N.J. 2008) (citing Bev.
v. Daimler Chrysler Servs. of N. Am., 2006 WL 361385, at *11 (D.N.J. Feb. 15, 2006) (holding

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“claims [that] were not alleged in the complaint [] cannot be raised for the first time in opposition
to a motion for summary judgment”)) (additional citations omitted).
Here, Plaintiff’s Complaint does not allege that the initial trial court’s refusal to suppress
evidence was induced by deception or coercion on the part of the State Defendants. Nor does
Plaintiff allege the Supreme Court of New Jersey’s decision to vacate his conviction was based on
any finding of fraud or deception by any of the State Defendants. To the contrary, as pled in his
Complaint, Plaintiff’s malicious prosecution claim is based entirely on the allegedly
unconstitutional search by Nugnes. As a matter of law, however, a malicious prosecution claim
cannot be based solely on an unconstitutional search and seizure by police. Hector, 235 F.3d at
157. Moreover, the Complaint fails to establish Nugnes’s allegedly unconstitutional search and
seizure was a proximate cause of his injuries because his conviction was the result of in intervening
independent judicial review. Egervary, 36 F.3d at 250-51. Plaintiff’s Complaint, therefore, fails to
state a claim for malicious prosecution.
IV.

CONCLUSION
For the reasons set forth above, the State Defendants’ Motion to Dismiss (ECF No. 12) is

GRANTED and Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE.
Plaintiff shall have thirty (30) days from the date of this Opinion to file an Amended Complaint
that cures the defects identified herein. An appropriate Order will follow.

Date: March 7, 2016

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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