ORTIZ v. NEW JERSEY STATE POLICE et al

Filing 17

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 8/25/2017. (mps)

NOT FOR PUBLICATION

AUG 2 5 2017

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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ASHLEY ORTIZ,
Plaintiff,
Civil Action No. 16-7976 (MAS) (DEA)
v.

MEMORANDUM OPINION
NEW JERSEY STATE POLICE, et al.,
Defendants.

SHIPP, District Judge
This matter comes before the Court on Defendants New Jersey State Police ("NJSP"),
NJSP Superintendent Joseph Fuentes, New Jersey Attorney General Christopher S. Porrino, and
Elie Honig's 1 (collectively, the "Moving Defendants")2 Motion to Dismiss Plaintiff Ashley Ortiz's
("Plaintiff') Complaint pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). (ECF
No. 11.) Plaintiff filed opposition (ECF No. 14), and the Moving Defendants replied (ECF No.
15). The Court has carefully considered the parties' submissions and decides the matter without
oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, the Court
GRANTS the Moving Defendants' Motion to Dismiss.

1

Elie Honig is the Director of the Division of Criminal Justice in the Office of the Attorney
General. (Compl. ~ 6, ECF No. 1.)
2

Defendant Marc Dennis ("Defendant Dennis") (the Moving Defendants and Defendant Dennis
are, collectively, "Defendants"), who is the only remaining named Defendant in this matter, did
not file a motion to dismiss.

Background3

I.

Plaintiff, a resident of Ocean County, New Jersey, brings this _action on behalf of herself
and others situated similarly. (Compl. if 2, ECF No. 1.) On August 31, 2015, Plaintiff was stopped
by a police officer4 "for having a light out on her license plate" while driving. (Id.

if 63.) The police

officer detected the odor of alcohol while questioning Plaintiff and conducted a field sobriety test.
(Id.

if 64.) Based on the sobriety test, Plaintiff was arrested and transported to the Wall Township

Police Department, where an Alcotest breathalyzer was administered and returned a blood alcohol
content ("BAC") of 0.09%. (Id. ifif 64-65.) "In reliance on her BAC reading, and the documentation
supporting that reading," Plaintiff pied guilty to driving while intoxicated ("DWI"), in violation of
N.J.S.A. 39:4-50. (Id.

ifif 1, 66-67.) As a result of her guilty plea, Plaintiffs driver's license was

· suspended for three months and she was required to pay fees and surcharges. (Id.

if 67.)

Sometime after her guilty plea, Plaintiff learned that the accuracy of the Alcotest
instruments used to test her BAC "had been negatively affected by Defendant Dennis's improper
recalibration of those instruments." (Id.

if 68.) Defendant Dennis was an Alcohol Drug Testing

Unit ("ADTU") Coordinator, and, therefore, tasked with calibrating and recalibrating the Alcotest
instruments. (Id.

if 41.) Defendant Dennis, however, failed to comply with the proper procedures,

and repeatedly certified that he had properly calibrated and recalibrated Alcotest instruments ovet

the course of seven years. (Id.

if 42-43.)

3

For the purpose of the instant Motion, the Court accepts all factual allegations in the.Complaint
as true. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The allegations
included in this section are taken directly from Plaintiffs Complaint.

4

Plaintiff does not identify the name of the police officer who conducted the stop. (See Compl.

irir 63-64.)

2

The Division of Criminal Justice of the State of New Jersey filed a criminal complaint
against Defendant Dennis and charged him with third degree tampering with public records
pursuant to N.J.S.A. 2C:28-7, and fourth degree falsifying of tampering with records pursuant to
N.J.S.A. 2C:21-4. (Id.

if 44; see also id. Ex. A, at 1, ECF No. 1-1.) The criminal complaint alleges

that Defendant Dennis failed to "use a NIST-traceable5 digital thermometer to test the temperature
of the simulator solutions6 prior [to] starting the ... calibration" of the Alcotest instrument as part
of the required calibration process. (Compl.

if 45; see also id. Ex. A, at 1-2.) "[T]he State has

admitted that Defendant Dennis issued false certifications regarding at least three Alcotest
instruments" by not using a NIST-traceable digital thermometer to test the temperature of the
simulator solutions prior to starting the calibration process. (Compl.

~~

45-47.) In light of these

facts, Plaintiff alleges that it is "probable" that Defendant Dennis failed to comply with other
required portions of the calibration process and submitted more than three ,false Alcotest
calibration certifications.

(Id.~

48.)

Plaintiff filed the instant five-count Complaint against Defendants alleging: (1) 42 U.S.C.
§ 1983 due process violations against Defendant Dennis based on fabrication of evidence; (2) 42

U.S.C. § 1983 due process violations against Defendants for the withholding and suppression of
exculpatory evidence; (3) 42 U.S.C. § 1983 due process violations against the NJSP and Fuentes

for failure to train, supervise, investigate, or discipline ADTU Coordinators; (4) violation of the
New Jersey Civil Rights Act ("NJCRA"), N.J.S.A. 10:6-1 to -2 against Defendant Dennis based

5

"NIST refers to the National Institute of Standards and Technology, which is responsible for
establishing, maintaining[,] and publishing basic standards of measurement consistent with their
international counterparts." (Compl. if 20.)
6

Plaintiff states that testing the temperature of simulator solution with a NIST-traceable
thermometer is a "crucial step in the calibration process." (Compl. if 33.)
3

on fabrication of evidence; and (5) violation of NJCRA against Defendants for the withholding
and suppression of exculpatory evidence. (Compl. ~~ 83-99.)
II.

Legal Standard7

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(l) challenges the
existence of a federal court's subject matter jurisdiction. "When subject matter jurisdiction is
challenged under Rule l 2(b)( 1), the plaintiff must bear the burden of persuasion." Symczyk v.
Genesis HealthCare Corp., 656 F.3d 189, 194 n.4 (3d Cir. 2011) (citation omitted). A motion to

dismiss for lack of subject matter jurisdiction may either "attack the complaint on its face ... [or]
attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings."
Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge

asserts that "the complaint, on its face, does not allege sufficient grounds to establish subject matter
jurisdiction." lwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999). A court
considering a facial challenge construes the allegations in the complaint as true, and determines
whether subject matter jurisdiction exists. Mortensen, 549 F.2d at 891. "In reviewing a factual
attack, the court may consider evidence outside the pleadings." Gould Elecs., Inc. v. United States,
220 F.3d 169, 176 (3d

Cir~

2000) (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.

1997)); see also United States ex rel. Atldnson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.
2007). A district court has "substantial authority" to "weigh the evidence and satisfy itself as to
the existence of its power to hear the case." Mortensen, 549 F.2d at 891.

7

Although the Moving Defendants bring the instant Motion under both Rules 12(b)(l) and
12(b)( 6), the Court finds subject matter jurisdiction to be the dispositive issue and, therefore, omits
the legal. standard under Rule 12(b)( 6).
4

III.

Discussion

The Moving Defendants argue that the Court lacks subject matter jurisdiction over
Plaintiffs claims under Section 1983 and the NJCRA, pursuant to Heck v. Humphrey, 512 U.S.
477 (1994). 8 (Defs.' Moving Br. 9-12, ECF No. 11-2.) A plaintiff can pursue a cause of action
under Section 1983 for certain violations of her constitutional rights. See 42 U.S.C. § 1983. To
state a claim for relief under Section 1983, a plaintiff must establish, first, the violation of a right
secured by the Constitution or laws of the United States and, second, that the alleged deprivation
was committed or caused by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d 160, .166-7 (3d Cir. 2013).

Additionally, "[t]he NJCRA is interpreted as analogous to§ 1983." Szemple v. Corr. Med. Servs.,
493 F. App'x 238, 241 (3d Cir. 2012); End! v. New Jersey, 5 F. Supp. 3d 689, 697 (D.N.J. 2014).
Thus, Plaintiffs claims pursuant to the NJCRA are analyzed alongside the Section 1983 claims.
"[T]he Supreme Court held that where success in a [Section] 1983 action would implicitly
call into question the validity of conviction or duration of sentence, the plaintiff must first achieve
favorable termination of [her] available state or federal habeas remedies to challenge the
underlying conviction or sentence." Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006); see
Heck, 512 U.S. at 487. Furthermore, "a [Section] 1983 plaintiff must prove 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. To determine whether Heck

8

The Moving Defendants also argue that the Rooker-Feldman doctrine, sovereign immunity, and
lack of standing bar Plaintiff's claims. (Defs.' Moving Br. 13-23, ECF No. 11-2.) The Court,
however, finds that the analysis under Heck is dispositive and the remaining arguments need not
be addressed.
5

applies, a court must conduct a "careful review of the elements of the admitted offense juxtaposed
with the plaintiff's factual allegations to determine if a verdict in plaintiff's favor would . . .
'necessarily imply the invalidity of [the] conviction."' Garrison v. Porch, No. 04-1114, 2008 WL
1744730, at *3 (D.N.J. Apr. 11, 2008) (citations omitted); see also Priovolos v. FBI, 632 F. App'x
58, 60 (3d Cir. 2015).
Here, Counts One, Two, Four, and Five allege that Defendants withheld and suppressed
evidence, failed to disclose Defendant Dennis's fabrication of evidence, and acted in concert and
conspired to withhold exculpatory evidence. (Compl. ,-r,-r 83-90, 94-99.) "[A] fabrication-ofevidence claim must allege 'a reasonable likelihood that . . . the defendant would not have been
convicted' without the fabricated evidence." Ebuzor-Onayemi v. Union Cty. Police Dep 't, No. 161869, 2017 WL 1377640, at *3 (D.N.J. Apr. 12, 2017) (citing Heck, 512 U.S. at 486-89).
Accordingly, "[t]o recognize an agreement among [d]efendants to fabricate evidence to convict
Plaintiff would assail the integrity of Plaintiff's extant conviction, in contravention with Heck."

Id.

at 4. 9
Similarly, Count Three would also imply the invalidity of Plaintiff's conviction. Count

Three alleges that:
Defendants NJSP and Fuentes have encouraged, tolerated, ratified,
and have been deliberately indifferent to the following patterns,
practices, and clear need for more or different training, supervision,
investigation or discipline in the areas of:

9

The Court notes that Plaintiff argues in her opposition brief that "her due process rights were
violated the moment she was charged with DWI based on fabricated evidence," and that "the mere
initiation of criminal charges using fabricated evidence is unconstitutional." (Pl. 's Opp'n Br. 11,
ECF No. 14.) Plaintiff, however, cites case law involving plaintiffs whose convictions would not
necessarily be invalidated by a § 1983 claim as each case involved a favorable determination for
the plaintiff. See Black v. Montgomery Cty., 835 F.3d 358, 363 (3d Cir. 2016) (not guilty); Fields
v. Wharrie, 740 F.3d 1107, 1109 (7th Cir. 2014) (acquitted); Halsey v. Pfeiffer, 750 F.3d 273, 278
(3d Cir. 2014) (conviction vacated).
6

(a) The proper exercise of police powers, including, but not limited
to the use of false information to initiate a prosecution, fabrication
of evidence, and suppression of exculpatory evidence;
(b) The proper use of the state-approved methodology for testing
evidential breath samples with Alcotest instruments and certifying
that those instruments have been properly calibrated; [and]
(c) [Deficient] [o]versight, supervision, and training of ADTU
[c] oordinators . . . .
(Compl. irir 91-93.) Under Section 1983, a supervising authority may be liable "for failing to train
police officers when the failure to train demonstrates deliberate indifference to the constitutional
rights of those with whom the officers may come into contact." Gilles v. Davis, 427 F.3d 197, 207
n.7 (3d Cir. 2005) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Plaintiffs claim
under Count Three rests on the allegation that there was widespread use of false information and·
suppression of evidence, including the evidence used in Plaintiffs case. (See Compl.

ifif 91-92.)

Judgment in favor of Plaintiff, therefore, would necessarily imply the invalidity of her conviction.
Moreover, the specific relief requested by Plaintiff further demonstrates the Court's lack
of jurisdiction under Heck. Plaintiff requests, in relevant part: (1) "[a] refund of all fines and
surcharges the Class paid in connection with their convictions"; (2) "[ c]orrection of the Class's
Division of Motor Vehicles records to remove evidence of their offenses"; and (3) [c]orrection of
the Class's criminal records to remove evidence of their offenses." (Compl. 21-22.) As evidenced
by these requests for relief, Plaintiff seeks to invalidate her conviction. Accordingly, the Court
finds that it lacks subject matter jurisdiction over.Plaintiffs claims pursuant to Heck. 10

.

10

Although Defendant Dennis has not answered or filed a motion to dismiss, the Court dismisses
Plaintiffs claims against all Defendants for lack of subject matter jurisdiction. See Coulter v.
Unknown Prob. Officer, 562 F. App'x 87, 89 n.2 (3d Cir. 2014) (granting a sua sponte dismissal
of claims asserted against non-moving defendants where the ground raised by the moving
defendants were common to all defendants and the plaintiff had an opportunity to respond to the
7

IV.

Conclusion

For the reasons set forth above, the Court GRANTS the Moving Defendants' Motion to
Dismiss. Plaintiffs Complaint is dismissed on all counts without prejudice. 11 An order consistent
with this Memorandum Opinion will be entered by the Court.

&wl~

MICHAEL A.

7i;i;p

UNITED STATES DISTRICT JUDGE

Dated: August417

moving defendants' arguments); see also Henry v. U.S. Atty Gen., 525 F. App'x 67, 69 (3d Cir.
2013) ("[F]ederal courts are obligated to sua sponte identify jurisdictional defects.").
11

Although the Court lacks subject matter jurisdiction over Plaintiffs claims at this time, the Court
dismisses the Complaint without prejudice as Plaintiffs claims may be viable if she first
invalidates her conviction through proper avenues for relief. (See Defs.' Moving Br. 11 (stating
that Plaintiff "must first seek [post.-conviction relief] in State Court and, if unsatisfied with the
result, appeal the decision through the State's appellate courts, and, ultimately, through the
Supreme Court of New Jersey").)
8