BAHGAT v. TOWNSHIP OF EAST BRUNSWICK et al

Filing 68

OPINION filed. Signed by Judge Brian R. Martinotti on 5/31/2019. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
v.
:
:
:
TOWNSHIP OF EAST BRUNSWICK,
:
EAST BRUNSWICK POLICE
:
DEPARTMENT, ACTING CHIEF
:
WILLIAM KRAUSE JR.,
:
LIEUTENANT ALAN QUERCIA,
:
LIEUTENANT KEVIN F. ZERBO,
:
PATROLMAN MICHAEL TOTA, ET AL., :
:
Defendants.
:
____________________________________:
JOSEPH BAHGAT,

Civil Action No. 3:16-cv-1827-BRM-LHG

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion to Dismiss filed by Defendants Township of East
Brunswick (“East Brunswick”), East Brunswick Police Department (“EBPD”), Acting Chief
William Krause Jr. (“Krause”), Lieutenant Alan Quercia (“Quercia”), Lieutenant Kevin F. Zerbo
(“Zerbo”), and Patrolman Michael Tota (“Tota”) (collectively “Defendants”) seeking to dismiss
Plaintiff Joseph Bahgat’s (“Plaintiff” or “Bahgat”) Second Amended Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 60.) Bahgat filed an
Opposition to Defendants’ Motion to Dismiss (ECF No. 63) and Defendants filed a Reply Brief
to Bahgat’s Opposition to its Motion to Dismiss. (ECF No. 64.) Also before this Court is
Bahgat’s Cross-Motion for Leave to Amend the Second Amended Complaint. (ECF No. 63-1.)
Having reviewed the submissions filed in connection with the motion and having declined to
hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth

below and for good cause appearing, Defendants’ Motion to Dismiss is GRANTED, Bahgat’s
Cross-Motion for Leave to Amend the Second Amended Complaint is DENIED AS MOOT,
and the Amended Complaint is DISMISSED WITH PREJUDICE.
I.

BACKGROUND
A. Factual Background

For the purposes of this Motion to Dismiss, the Court accepts the factual allegations in
the Amended Complaint as true and draws all inferences in the light most favorable to the
plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).1 Furthermore, the
Court also considers any “document integral to or explicitly relied upon in the complaint.” In re
Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Dig.
Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)).
Bahgat is a citizen of the United States and resides in Middlesex County, New Jersey.
(ECF No. 25 ¶ 5.) Bahgat is an attorney at law licensed to practice in the State of New Jersey
since 2008. (ECF No. 25 ¶¶ 19-20.)
On February 2, 2014, New Jersey Motor Vehicle Commission (“MVC”) Commissioner
Raymond P. Martinez (“Martinez”) sent a letter to Bahgat informing him that his New Jersey
driver’s license was suspended by New Brunswick Municipal Court for a parking violation,
pursuant to N.J.S.A. § 39:4-139.2, and that he must submit a payment for an outstanding fine to
the New Brunswick Municipal Court. (ECF No. 25 ¶¶ 26-27.) Bahgat then called the New
Brunswick Municipal Court, and the “deputy court administrator” confirmed to him that letter

This Court recognizes that the presumption of truthfulness of the allegations contained in
Bahgat’s Complaint applies only when considering Defendants’ Motion to Dismiss pursuant to
Rule 12(b)(6). No presumption of truthfulness attaches to a plaintiff’s allegations when a
defendant moves for dismissal for lack of subject matter jurisdiction. U.S. ex rel. Atkinson v. PA.
Shipbuilding Co., 473 F.3d 506, 509 (3d Cir. 2007).
1

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was sent to him in error and it would be “remedied immediately by faxing a letter to [] Martinez
instructing the MVC to correct its records.” (ECF No. 25 ¶¶ 28-29.) Ultimately, Bahgat was
unable to reach Martinez, so sent a letter “enclosing the municipal court’s documentation” and
requesting a response. (ECF No. 25 ¶ 30.)
In March 2014, Bahgat received a billing notice from the MVC indicating that he owed
the MVC $100. (ECF No. 25 ¶ 31.) On March 23, 2014, Bahgat sent a letter to the MVC by fax
and regular mail stating his “objection to the billing notice,” “documentation of [] MVC’s error,”
and requesting a written confirmation from the MVC. (ECF No. 25 ¶¶ 31-32.) Bahgat never
received a confirmation. (ECF No. 25 ¶ 32.)
On April 1, 2014, Bahgat was pulled over by Tota near the intersection of Ryders Lane
and Dunhams Corner Road in East Brunswick. (ECF No. 25 ¶¶ 233-35) Tota informed Bahgat
that was stopped because his driver’s license was suspended, although he “never asked about
[Bahgat]’s driver’s license, insurance or vehicle registration.” (ECF No. 25 ¶ 35.) In response,
Bahgat told Tota that his license was not suspended and “brought out documentation from the
municipal court” proving that the suspension of his license was erroneous. (ECF No. 25 ¶ 36.)
Tota refused to view the documents and Bahgat’s car was seized. (ECF No. 25 ¶¶ 36-37.) Tota
then requested backup police personnel to “assist him with [Bahgat]’s arrest and seizure” and
subsequently “made a derogatory remark” about Bahgat over the police radio. (ECF No. 25 ¶
38.) Bahgat was then charged with a violation of N.J.S.A. § 39:3-40, driving with a suspended,
revoked, or prohibited license. (ECF No. 25 ¶ 39.)
On April 30, 2014, Bahgat received a letter from the MVC’s Director of Customer
Information & Advocacy, Donald Borowski (“Borowski”), informing him that the MVC’s Data
Entry Unit updated Bahgat’s driving record and deleted his January 31, 2014 parking offense

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from his record. (ECF No. 25 ¶ 41.) Sometime thereafter, Bahgat appeared in East Brunswick
Municipal Court for an arraignment on the driving with a suspended license charge and entered a
plea of not guilty. (ECF No. 25 ¶ 42.) Bahgat also made a motion to dismiss before the East
Brunswick Municipal Court, but instead of ruling on the motion, “the court transferred the case
to South River Borough for further disposition.” (Id.)
Bahgat then appeared in South River Municipal Court, at which time the prosecutor,
Defendant Lawrence B. Sachs (“Sachs”), offered to dismiss the pending charges if Bahgat
agreed not to bring a civil action against Tota or East Brunswick. (ECF No. 25 ¶ 44.) Bahgat
refused this offer and instead re-filed his motion to dismiss the charge in South River Municipal
Court. (Id.) On September 23, 2014, the South River Municipal Court granted Bahgat’s motion
to dismiss, thereby dismissing all the charges pending against him. (ECF No. 25 ¶ 45.)
Sometime thereafter, Bahgat initiated an administrative complaint against Tota by
sending a letter to Krause. (ECF No. 25 ¶ 46.) Krause then forwarded Bahgat’s complaint to
Zebro, who contacted Bahgat and requested he appear for an in-person interview. (ECF No. 25
¶¶ 47-48.) Bahgat alleges Zebro’s investigation was a “sham” as it concluded Tota did not
violate any departmental standards or procedures. (ECF No. 25 ¶ 49.)
B. Procedural History
On March 31, 2016, Bahgat filed a Complaint (the “Complaint”) before this Court
against Defendants, as well as Defendants MVC, Martinez, and Sachs. (ECF No. 1.) The
Complaint asserted causes of action for: wrongful arrest and seizure and malicious prosecution
against East Brunswick, Tota, and Sachs (“Count One”); unconstitutional official policy pursuant
to 42 U.S.C. § 1983 against MVC and East Brunswick (“Count Two”); supervisory liability
pursuant to 42 U.S.C. § 1983 against MVC, East Brunswick, Krause, and Quercia (“Count

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Three”); negligence against the MVC (“Count Four”); negligent misrepresentation against the
MVC (“Count Five”); negligent hiring against the MVC and East Brunswick (“Count Six”);
violations of 42 U.S.C. § 1983 against all defendants (“Count Seven”); and violations of the New
Jersey Civil Rights Act against all defendants (“Count Eight”). (ECF No. 1.) On June 8, 2016,
Bahgat filed an Amended Complaint (the “Amended Complaint”) asserting the same causes of
action against the same defendants. (ECF No. 3.) On July 19, 2016, Defendants filed an Answer
to Bahgat’s Amended Complaint. (ECF No. 15.) On October 24, 2016, the MVC and Martinez
(the “MVC Defendants”) filed a Motion to Dismiss the Amended Complaint. (ECF No. 23.)
On November 17, 2016, Bahgat filed a Second Amended Complaint (the “Second
Amended Complaint”) asserting the same causes of action but adding Martinez as a defendant as
to Counts Three and Four. (ECF No. 25.) In light of the Second Amended Complaint, the Court
dismissed the MVC Defendants’ Motion to Dismiss as moot. (ECF No. 27.)
On December 15, 2016, the MVC Defendants filed a Motion to Dismiss the Second
Amended Complaint. (ECF No. 28.) On February 21, 2017, Bahgat filed an Opposition to the
MVC Defendants’ Motion to Dismiss (ECF No. 38) and on February 24, 2017, the MVC
Defendants filed a Reply Brief to Bahgat’s Opposition to their Motion to Dismiss. (ECF No. 40).
On April 24, 2017, this Court held an oral argument on the MVC Defendants’ Motion to Dismiss
the Second Amended Complaint. (ECF No. 43.) On May 30, 2017, this Court issued an Opinion
and Order whereby it dismissed Counts Three through Eight with prejudice, as to the MVC
Defendants, and dismissed the claims against Martinez in his individual capacity without
prejudice. (ECF Nos. 44 & 45.)
On October 26, 2018, Defendants filed a Motion to Dismiss the Second Amended
Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief

5

may be granted. (ECF No. 60.) On November 17, 2018, Bahgat filed an Opposition to
Defendants’ Motion to Dismiss (ECF No. 63) and on November 26, 2018, Defendants filed a
Reply Brief to Bahgat’s Opposition to its Motion to Dismiss. (ECF No. 64). On December 3,
2018, Bahgat filed a Letter Request to this Court requesting leave to file supplemental papers in
opposition to Defendants’ Motion to Dismiss. (ECF No. 66.) This Court granted Bahgat’s
request. (Id.) On December 13, 2017, Bahgat filed a Supplemental Opposition to Defendants’
Motion to Dismiss. (ECF No. 67.)
II.

LEGAL STANDARD
A. Rule 12(b)(1) Standard

“When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must
bear the burden of persuasion.” Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 191 n.4 (3d
Cir. 2011) (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
No presumption of truthfulness is accorded to the plaintiff’s allegations. Atkinson, 473 F.3d at
509.
When faced with a Rule 12(b)(1) challenge to jurisdiction, the court “must start by
determining whether [it is] dealing with a facial or factual attack to jurisdiction.” Id. “If [it] is a
facial attack, the court looks only at the allegations in the pleadings and does so in the light most
favorable to the plaintiff.” “If [it] is a factual attack, however, it is permissible for a court to
review evidence outside the pleadings.” Id. Moreover, the trial court is free to weigh and
evaluate the evidence in determining whether its jurisdiction has been demonstrated. Symczyk,
656 F.3d at 191 n.4 (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1997)). A jurisdictional challenge is a factual challenge if “it concerns not an alleged
pleading deficiency, but rather the actual failure of [plaintiff’s] claims to comport with the

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jurisdictional prerequisites.” Atkinson, 473 F.3d at 514.
B. Rule 12(b)(6) Standard
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 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. Cty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A] complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted).

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.” 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 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. (quoting 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

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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)).
However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy
Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion
couched as a factual allegation.” Papasan, 478 U.S. at 286.
While, as a general rule, the court may not consider anything beyond the four corners of
the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a
court may consider certain narrowly defined types of material without converting the motion to
dismiss [to one for summary judgment pursuant to Rule 56].” In re Rockefeller Ctr. Props. Sec.
Litig., 184 F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “‘document
integral to or explicitly relied upon in the complaint.’” Burlington Coat Factory, 114 F.3d at
1426 (quoting Shaw, 82 F.3d at 1220).
III.

DECISION

Defendants contend the Second Amended Complaint does not state any federal claim and
therefore lacks subject matter jurisdiction, the doctrine of qualified immunity requires dismissal
of Bahgat’s claims, there is no cognizable cause of action against East Brunswick, there is no
cognizable cause of action for negligent hiring or negligent supervision, and the Amended
Complaint fails to state a claim under the NJCRA. (ECF No 60-2 at 4-16.) Bahgat counters that

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the Second Amended Complaint alleges that Defendants violated his constitutional rights by
stopping him, seizing his property without due process, and maliciously prosecuting him to
“cover up the officer’s and department’s misconduct.” (ECF No. 63 at 15-18.) Bahgat further
contends that he has demonstrated a violation of his constitutional rights on behalf of Tota, who
is not entitled to qualified immunity. (Id. at 18-19.) This Court considers each argument in turn.
A. 42 U.S.C. § 1983 (Counts Two, Three, Six and Seven)2
Defendants contend the Second Amended Complaint fails to allege any federal claim or
cause of action under 42 U.S.C. § 1983, and that as such, this Court lacks subject matter
jurisdiction to hear this matter. (ECF No. 60-2 at 4-7.) Bahgat argues that Tota, and by extension
East Brunwick, violated his constitutional rights by “unlawfully stopping and detaining him, and
seizing his vehicle without probable cause to do so.” (ECF No. 63 at 15.) Bahgat further argues
that Tota “knew he lacked probable cause to arrest [him] or to seize his vehicle,” and that as
such, Defendants are not entitled to qualified immunity. (Id. at 19-21.)
Section 1983 states, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . 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.
42 U.S.C. § 1983.
Therefore, to state a claim under Section 1983, a plaintiff must allege: (1) the violation of
a right secured by the Constitution or laws of the United States, and (2) that the alleged
2

Counts Two (Monell claim for unconstitutional official policy), Three (supervisory liability
pursuant to Section 1983), Six (negligent hiring), and Seven (Section 1983 violations) all assert
causes of action pursuant to Section 1983. (ECF No. 25 ¶¶ 55-85.) In the interest of convenience,
each count is dealt with under this section.
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deprivation was committed or caused by a person amenable to suit under Section 1983 and
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Here, Bahgat fails to allege a violation of a
federal or constitutional right, and as such, the § 1983 claims are dismissed.
Bahgat’s § 1983 claim is premised on the allegation that Tota violated his constitutional
rights by unlawfully detaining him and seizing his vehicle. (ECF No. 63 at 15.) Bahgat contends
the Second Amended Complaint adequately alleges a violation of his rights under the Fourth
Amendment, as the “Third Circuit has held [] even a relatively brief traffic stop is a ‘seizure’
within the meaning of the Fourth Amendment.”3 (ECF No. 63 at 18.) Bahgat argues “the facts
upon which [] Tota relied when conducting his initial stop were inaccurate because of the failure
of [] Martinez to maintain accurate driver history records,” and that as such, Bahgat has
adequately pled that his Fourth Amendment rights were violated, thereby giving rise to his §
1983 cause of action. (ECF No. 63 at 18-19.)
In his Opposition to the Motion to Dismiss, however, Bahgat concedes that his vehicle
“had no front [] license plate” and he “opted to display the plate on the dashboard/in the
windshield” of his car. (Id. at 10.) Bahgat erroneously asserts this practice comports with
N.J.S.A. § 39:3-33, which states in pertinent part:

Indeed, the Third Circuit has held that a “traffic stop is a ‘seizure’ within the meaning of the
Fourth Amendment, ‘even though the purpose of the stop is limited and the resulting detention
quite brief.’” United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006) (quoting
Delaware v. Prouse, 440 U.S. 648, 653 (1979)). However, a traffic stop is reasonable, and thus
not in violation of the Fourth Amendment, “when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Delfin-Colina, 464 F.3d at 396 (quoting United States
v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000)). “Reasonable, articulable suspicion is a ‘less
demanding standard than probable cause and requires a showing considerably less than [a]
preponderance of the evidence.’” Delfin-Colina, 464 F.3d at 396 (quoting Illinois v. Wardlow,
528 U.S. 119, 123 (2000)). Rather, only a “minimal level of justification” is necessary to justify
a traffic stop. United States v. Sokolow, 490 U.S. 1, 7 (1989).
3

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The owner of an automobile which is driven on the public
highways of this State shall display not less than 12 inches nor
more than 48 inches from the ground in a horizontal position, and
in such a way as not to swing, an identification mark or marks to
be furnished by the division.
N.J.S.A. § 39:3-33.
New Jersey case law makes clear that a driver’s failure to have a plate properly and
“conspicuously” displayed on his or her vehicle constitutes a reasonable and articulable
suspicion that a motor vehicle offense has been committed, thereby justifying a stop. State v.
Murphy, 570 A.2d 451, 455 (N.J. App. Div. 1990); see also State ex rel. D.K., 821 A.2d 515, 517
(N.J. App. Div. 2003). In Murphy, an officer stopped a car for having a license plate “stuck in the
rear window,” believing it to be a violation of N.J.S.A. § 39:3-33. Murphy, 570 A.2d at 452. The
Appellate Division determined the officer had reasonable suspicion to make the stop as the
license plate was “not conspicuously displayed” and “placed in the weather stripping of the rear
window” rather than “permanently affixed.” Id. at 455. The Appellate Division held that the
Fourth Amendment is satisfied if the stop is the result of an officer’s objectively reasonable
belief that an infraction has been committed, as enunciated in State v. Bruzzese, 463 A.2d 320,
325 (N.J. 1983). Murphy, 570 A.2d at 456.
Here, Bahgat conceded in his Opposition that his license plate was not affixed to his
vehicle, but rather, “on the dashboard/in the windshield.” (ECF No. 63 at 10.) As it is wellestablished that the failure of a motorist to properly affix a license plate constitutes reasonable
suspicion for a stop, Tota was justified in effectuating the traffic stop. Therefore, the Second
Amended Complaint has failed to allege any constitutional violation giving rise to a § 1983

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cause of action.4
As Bahgat has failed to allege that Tota’s investigative stop violated his constitutional
rights, his § 1983 claims for unconstitutional official policy pursuant to Monell (Count Two),
supervisory liability pursuant to § 1983 (Count Three), and negligent hiring (Count Six) must
also be dismissed. Each count contains an element requiring the plaintiff to have adequately pled
a violation of his or her constitutional rights by a state actor. See Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978) (holding that a prerequisite to a Section 1983 action
for unconstitutional policy is an “official policy as the moving force of the constitutional
violation found by the District Court”); see also Santiago v. Warminster Twp., 629 F.3d 121,
128-29 (3d Cir. 2010) (holding that there are “two theories” of supervisory liability, “one under
which supervisors can be liable if they established and maintained policy . . . which directly
caused constitutional harm, and another under which they can be liable if they participated in
violating plaintiff’s rights”);5 see also Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520
U.S. 397, 405 (1997) (holding that a plaintiff asserting a negligent hiring claim pursuant to
Section 1983 must prove he or she “suffered a deprivation of federal rights”). As Bahgat has not
pled facts giving rise to a constitutional violation, his causes of action for unconstitutional policy,
supervisory liability, and negligent hiring must fail. Accordingly, Defendants’ Motion to Dismiss
is GRANTED with respect to Counts Two, Three, Six, and Seven.
4

Notably, the Appellate Division further held that the fact that a motorist is subsequently found
not guilty of a motor vehicle violation “would not ‘impugn the propriety of the initial stop.’”
Murphy, 570 A.2d at 456 (quoting State v. Nugent, 312 A.2d 158, 162 (N.J. App. Div. 1973)).
5

Furthermore, a plaintiff asserting a supervisory liability claim must identify the specific
supervisory practice the defendant failed to employ as well as contemporaneous knowledge of
the offending incident or pattern of similar incidents and circumstances under which the
supervisor’s inaction could be found to constitute tacit approval of such. See Jankowski v.
Lellock, 649 F. App’x 184, 187 (3d Cir. 2016). The Second Amended Complaint does not assert
such allegations.
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B. Wrongful Arrest and Seizure/Malicious Prosecution (Count One)
Bahgat asserts claims for both wrongful arrest and seizure and malicious prosecution
against East Brunswick, Tota, and Sachs under Count One. The allegations contained in Count
One of the Second Amended Complaint are insufficient to overcome Defendants’ Motion to
Dismiss.6
Tota, and by extension, East Brunswick, is immune from liability under § 1983. “[A]n
officer will be immune from civil liability under § 1983 for a wrongful arrest ‘if there were
sufficient objective indicia of probable cause to justify the action taken even if, in fact, probable
cause did not exist.’” Plummer v. Dep’t of Corrections, State of N.J., 702 A.2d 535, 537 (N.J.
App. Div. 1997) (quoting McKinney v. E. Orange Mun. Corp., 666 A.2d 191, 195 (N.J. App.
Div. 1995)). “The inquiry, therefore, becomes an objective, albeit fact specific, question to be
decided as a matter of law.” Plummer, 702 A.2d at 537 (citing Anderson v. Creighton, 483 U.S.
635, 641 (1987) (holding that “it is inevitable the law enforcement officials will in some cases
reasonably but mistakenly conclude that probable cause is present, and we have indicated that in
such cases those officials – like other officials who act in ways they reasonably believe to be
lawful – should not be held personally liable”)).
Here, Tota reasonably concluded that probable cause was present by virtue of Bahgat’s
improperly affixed license plate. (ECF No. 63 at 10); see also Murphy, 570 A.2d at 452.
Moreover, in the Second Amended Complaint, Bahgat explicitly acknowledges the fact that his
license was suspended at the time of the incident. (ECF No. 25 ¶¶ 26-27.) In light of these
undisputed facts, there were “sufficient objective indicia of probable cause to justify the action
6

Although not explicitly stated, this Court presumes the wrongful cause of action is asserted
against Tota and East Brunswick, whereas the malicious prosecution cause of action is asserted
against Sachs, the South River Municipal Prosecutor.
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taken.” Plummer, 702 A.2d at 538 (quoting McKinney, 666 A.2d at 195); see also Beck v. Ohio,
379 U.S. 89, 91 (2000) (holding that probable cause exists when “the facts and circumstances
within [the officer’s] knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the [suspect] had committed . . . and
offense”). As such, Tota and East Brunswick are entitled to the enforcement of their qualified
immunity as a matter of law. See Plummer, 702 A.2d at 538.7 Accordingly, Defendants’ Motion
to Dismiss the wrongful arrest and seizure claim in Count One is GRANTED.
Similarly, Bahgat has failed to state a case for malicious prosecution. To prevail on a
Fourth Amendment malicious prosecution claim pursuant to § 1983, a plaintiff must establish:
(1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in [the plaintiff’s] favor; (3) the defendant
initiated the proceeding without probable cause; (4) the defendant
acted maliciously or for a purpose other than bringing the plaintiff
to justice; and (5) the plaintiff suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a legal
proceeding.
Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014) (citing Johnson v. Knorr, 477 F.3d 75, 82
(3d Cir. 2007)).
There was probable cause to initiate the proceeding against Bahgat, as it is undisputed
that Bahgat’s license plates were not properly affixed and that he was driving while his license
was suspended. (ECF No. 25 ¶¶ 26-27; ECF No. 63 at 10.) As such, Bahgat’s malicious

Notably, the Supreme Court has held that qualified immunity is “an immunity from suit rather
than a mere defense to liability” and that “like an absolute immunity, it is effectively lost if a
case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As
such, a defendant adequately pleading qualified immunity is “entitled to dismissal before the
commencement of discovery.” Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Therefore, this Court determines that dismissal at this phase of the litigation is the only
appropriate remedy.
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prosecution claim must necessarily fail as a prong of the inquiry cannot be satisfied.8
Accordingly, Defendants’ Motion to Dismiss the malicious prosecution claim in Count One is
GRANTED.9
C. New Jersey Civil Rights Act (Count Eight)
In Count Eight of the Second Amended Complaint, Bahgat asserts a claim for a violation
of the New Jersey Civil Rights, N.J.S.A. § 10:6-2, et seq. (“NJCRA”) against all Defendants.
(ECF No. 25 ¶¶ 86-87.) The NJCRA creates a private right of action for any person who has
been subjected to a violation of federal or state constitutional rights, stating:
Any person who has been deprived of any substantive due process
of equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to
be interfered with, by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action for damages and
for injunctive or other appropriate relief.
N.J.S.A. § 10:6-2(c).
“Like 42 U.S.C. § 1983, on which it was modeled, the NJCRA provides a means of
vindicating substantive rights guaranteed by federal law and New Jersey’s Constitution and laws
and is not a source of rights itself.” Lapolla v. Cty. of Union, 157 A.3d 458, 469 (N.J. App. Div.
Moreover, this Court is unconvinced that Bahgat’s allegation that his prosecution was
“commenced and instituted by defendants maliciously” is anything more than a bald, conclusory
assertion, which this Court may discount in ruling on Defendants’ Motion to Dismiss. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (holding that “conclusory or
‘bare-bones’ allegations will no longer survive a motion to dismiss”).
8

9

The Second Amended Complaint does not specify whether Bahgat intends on pursuing a
Section 1983 malicious prosecution claim or a malicious prosecution claim at New Jersey law in
Count One. Indeed, neither Bahgat’s Opposition to Defendants’ Motion to Dismiss (ECF No.
64), nor his “Certification in Opposition” (ECF No. 67) address his malicious prosecution claim.
Nevertheless, for the same reasons as the Section 1983 malicious prosecution claim must fail, so
too must any malicious prosecution claim asserted pursuant to New Jersey state law.
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2017) (citing Gormley v. Wood-El, 93 A.3d 344, 358 (N.J. 2014)). As such, “[t]his district has
repeatedly interpreted NJCRA analogously to § 1983.” Trafton v. City of Woodbury, 799 F.
Supp. 2d 417, 443-44 (D.N.J. 2011) (citing Chapman v. New Jersey, No. 08-4130, 2009 WL
2634888, at *3 (D.N.J. Aug. 25, 2009) (holding that courts “have repeatedly construed the
NJCRA in terms nearly identical to its federal counterpart”)). Therefore, this Court will “analyze
[Bahgat’s] NJCRA claims through the lens of § 1983.” Trafton, 799 F. Supp. 2d at 444 (citing
Hedges v. Musco, 204 F.3d 109, 121 n.12 (3d Cir. 2000) (holding that New Jersey’s
constitutional provisions concerning unreasonable searches and seizures is interpreted
analogously to the Fourth Amendment)); see also Desilets v. Clearview Reg’l Bd. of Educ., 627
A.2d 667, 673 (N.J. App. Div. 1993) (holding that “the New Jersey Supreme Court [has]
analyzed the search and seizure issue under the Fourth Amendment . . . and did not suggest that
New Jersey’s organic law imposed more stringent standards”).
Because Bahgat has not alleged a claim giving rise to liability pursuant to Section 1983,
his NJCRA claim must fail. The Second Amended Complaint fails to adequately plead any
violations of Bahgat’s federal or state constitutional rights. As the NJCRA does not confer any
substantive rights, but is a merely a vehicle of enforcement, pleading such constitutional
violations is a prerequisite of withstanding a motion to dismiss. Accordingly, Defendants’
Motion to Dismiss Count Eight is GRANTED.

IV.

CONCLUSION

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For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED, the
Second Amended Complaint is DISMISSED WITH PREJUDICE, and Bahgat’s Cross-Motion
for Leave to Amend the Complaint is DENIED AS MOOT as set forth herein and in the
accompanying order.

Date: May 31, 2019

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

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