HOF v. JANCI et al

Filing 22

OPINION filed. Signed by Judge Anne E. Thompson on 9/7/2017. (mmh)

RECEIVED
NOT FOR PUBLICATION

UNITED ~TATES DISTRICT COURT
DISTiCT OF NEW JERSEY

SEP O 7 2017.
AT 8:30
_.M
WILLIAM T. WALSH
CLEAi<

RAYMOND HOF,
Civ. No. 17-295

Plaintiff,

v.
OPINION

JAMES JANCI, ESQ., HUNTERDO
COUNTY PROSECUTOR'S OFFIC , JOHN
DOE 1-10, GOVERNMENTAL AG 'NCY 110
Defendants.
THOMPSON. U.S.D.J.

TRODUCTION
This matter comes before the 1ourt on a motion to dismiss brought by Defendants James
Janci, Esq. ("Defendant Janci") and Hunterdon County Prosecutor's Office ("Defendant HCPO")
(collectively"Defendants"). (ECF No. 13.) Plaintiff Raymond Hof("Plaintiff') opposes. (ECF
No. 14.) The Court has decided them tion after considering the parties' written submissions and
oral argument pursuant to Local Civil ule 78.l{b). For the following reasons, Defendants'
motion is granted in part.

BACKGROUND
Plaintiff brings this civil rights iuit against Defendants Janci and HCPO. Plaintiff's
allegations are as follows. Defendant HCPO is a County Agency that prosecuted Plaintiff and
Defendant J anci was First Assistant Plsecutor in the Hunterdon County Prosecutor's Office at

1

all times relevant to the Complaint. (Compl., ECF No. 1 at "Parties",, 2"""""3.) 1 Plaintiff was
subject to Community Supervision for Life (''CSL") due to a 2001 conviction. (Id. at "Factual
Allegations Common to All Counts", 1.) On or about May 29, 2014, a Hunterdon County Grand
Jury indicted Plaintiff for violating a c ndition of CSL. (Id.) On or about August 7, 2014, a
Hunterdon County Grand Jury also

in~cted Plaintiff for Terroristic Threats, Possession of

Weapons, Possession of Weapons for bnlawful Purposes, and two counts of Criminal Restraint
arising out of an alleged domestic violrce incident on June 12, 2014. (Id.)
The Criminal Judge granted Plaintiff bail and did not issue a "no-contact order" for the
alleged victim of the domestic violencj, Plaintiff's girlfriend. (Id. at "Factual Allegations
Common to All Counts", 3.) Plaintiff planned to live with his girlfriend. (Id. at "Factual
Allegations Common to All Counts"

1

, ~.) Plaintiff was set to be released on January 16, 2015.

(Id.) However, on that same day, Defe dant Janci purposefully lied to Plaintiffs parole officer,
and stated that there was a no-contact llrder in place and that Plaintiff would violate the nocontact order upon his release. (Id.) Pl intiff's parole officer then "attempted to pressure
[Plaintiff] into signing papers stating tliat he would stay away from his girlfriend and enroll in a
halfWay house." (Id.

~ 4.) Plaintiff refufed, was arrested for violating CSL, and was imprisoned

until February 20, 2015. (Id. ft:4-5.) Plaintiff was unable to see his girlfriend for more than a
year. (Id. , 5).
Plaintiff further alleges that Defendant HCPO is the ultimate policymaking authority for
its employees; that Defendant HCPO ij legally responsible for the hiring, training, retention,
supervision, and discipline of its empl lyees; that it is legally responsible for the acts of its

1

The Complaint does not include page numbers, and the numbering of the paragraphs restarts
with each individual section of the Complaint. Therefore, for citation purposes, the Court will
refer to the title of the section of the C mplaint before referring to the paragraph number.
1

2

employees based on principles of ageney, respondeat superior, vicarious liability, and also for its
direct participation in the violation of,laintiffs rights. (Id. at "Additional Facts Regarding
Liability'' mf 1-4.) Defendant J anci' s wrongful actions were undertaken in the absence of
reasonable good faith, with actual mali e, and within the scope of his employment with
i
I

Defendant HCPO. (Id. ~~ 5-6.) i
I

Plaintiff's Complaint includes ·x counts: (1) Violation of 42 U.S.C. § 1983; (2)
:

I

Violation of State Civil Rights Law and 42 U.S.C. § 1988; (3) Malicious Prosecution/Malicious
Abuse of Legal Process; (4) M~licious

isrepresentation Causing Damage; (5) Fraud; (6) False

Imprisonment. (See Compl.) Plaintiff led the Complaint on January 16, 2017 (id.), bringing
claims against Defendant HCPO and Defendant Janci in both his official and individual capacity.

(Id. at "Parties" ifif 2--3.) The Clerk of ourt entered default for failure to plead or otherwise
defend against Defendant HCPO on Fe ruary 14, 2017 and against Defendant Janci on February
24, 2017. (See ECF Entry dated Febru8!fY 14, 2017; ECF No. 7.) On April 5, 2017, this Court
granted the motion to vacate default
subsequently filed the motion

mL

by Defendants. (ECF Nos. 9, 10.) Defendants

t~ dismijs presently before the Court. (ECF No. 13.) Oral

argument was held on August 24, 201

J
I

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(l}, a Defendant may move at any time to
dismiss the Complaint for lack of subjebt matter jurisdiction on either facial or factual grounds.

l

Gould Electronics Inc. v. United States 220 F .3d 169, 176 (3d Cir. 2000) (citing Mortensen v.
I

First Fed. Sav. & Loan Ass 'n, 549 F.2dl 884, 891 (3d Cir. 1977)). In analyzing a facial challenge,
a court "must consider only the allegatilns of the complaint and documents attached thereto, in
the light most favorable to the plaintiff. ' Id. (citing Mortensen, 549 F .2d at 891 ). In considering a
3

factual challenge, however, a court "m[y consider evidence outside of the pleadings." Id. (citing

Mortensen, 549 F.2d at 891). Regardle s of the type of challenge, the plaintiff bears the ''burden
of proving that the court has subject

J

tter jurisdiction." Cottrell v. Heritages Dairy Stores, Inc.,

2010 WL 3908567, at *2 (D.N.J. Sept. 30, 2010) (citing Mortensen, 549 F.2d at 891).
II.

6

Federal Rule of Civil Procedur

A motion under Federal Rule o Civil Procedure 12(b)(6) tests the sufficiency of a
complaint. Kost v.

Kozakiewicz~

1 F.3 176, 183 (3d Cir. 1993). The defendant bears the burden

of showing that no claim has been pres nted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). When considering a Rule 12(b) 6) motion, a district court should conduct a three-part
analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'take
note of the elements a plaintiff must pl ad to state a claim."' Id. (quoting Ashcroft v. Iqbal, 56
U.S. 662, 675 (2009)). Second, the co

must accept as true all of a plaintiffs well-pleaded

factual allegations and construe the corlaint in the light most favorable to the plaintiff~ Fowler

v. UPMC Shadyside, 578 F .3d 203, 21

11 (3d Cir. 2009); see also Connelly v. Lane Const.
I

Corp., 2016 WL 106159 (3d Cir. Jan. 11, 2016). However, the court may disregard any
conclusory legal allegations. Fowler,

518 F.3d at 203. Finally, the court must determine whether
I

the "facts are sufficient to show that plaintiff has a 'plausible claim for relief."' Id. at 211
(quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more than a "mere
possibility of misconduct," the complaint must be dismissed. See Gelman v. State Farm Mut.
I

Auto. Ins. Co., 583 F.3d 187, 190 (3d Gir. 2009) (quoting Iqbal, 556 U.S. at 679).
ANALYSIS
Defendants make six separate

guments in their motion to dismiss. The Court will

address each in turn.

4

I.
.

Eleventh Amendment Sovereign Immunity

De~endants

first argue

~at ~Jat.ti~s claim~

against Defendant

HC~O Pl~tiff's.
and

clatms agatnst Defendant Janci m his official capacity are barred by Sovereign lmmuruty denved
from the Eleventh Amendment pf the

J.s.

Constitution. This argument challenges the Court's

subject matter jurisdiction, and therefoje is determined pursuant to Federal Rule of Civil

Procedure 12(b)(l). Bianciak v. Allegheny Ludium Corp., 77F.3d 690, 693 n.2 (3d Cir. 1996).
The Eleventh Amendment projdes, ''The Judicial power of the United States shall not be

construed to extend to any suit in law r equity, commenced or prosecuted against one of the
United States by citizens of another St te, or by Citizens or Subjects of any Foreign State." U.S.
Const. amend. XI. The Eleventh Amentlment's grant of sovereign immunity applies to§ 1983
claims brought against a state. See Quel v. Jordan, 440 U.S. 332, 345 (1979). Eleventh
Amendment immunity also extends to Lain actions against state agencies and departments so
long as the state itself is the real party

L

F.2d 655, 659 (3d Cir. 1989). Similarl

I, the NJCRA has also been interpreted to grant immunity

interest. Fitchik v. N.J. Transit Rail Operations, 873

to "states and state officials acting in t eir official capacity." Estate ofLagano v. Bergen Cnty.
Prosecutor's Office, 769 F.3d 850, 856 (3d Cir. 2014). In determining whether sovereign
immunity applies, the Court must consider: (1) the source of the funds that would pay for the

judgment; (2) the status of the entity ,der state Jaw; and (3) the entity's degree of autonomy.

Fitchik, 873 F.3d at 659. The Third C r t recently held that whether a defendant enjoys

Eleventh Amendment sovereign immutfty is "analytically distinct" from whether a Defendant is
a "person" subject to suit under § 1983l •d that "Fitchik provides the proper framework for
1an

analyzing Eleventh Amendment sover ·gn immunity as it applies to county prosecutors."
Lagano, 769 F.3d at 857-58 (3d Cir. 2J14). The Eleventh Amendment does not preclude suits

5

brought against State officials in their ·ndividual capacities, however, even if the challenged
conduct was part of their official respo sibilities. Hafer v. Melo, 502 U.S. 21, 31 (1991).

a

Fit~hik.Factor ~e:

S o t ofFunds

.

.

.

The first Fztchzk factor 1.s the s mce of the funds to pay for the Judgment. Fztchzk, 873
F.3d at 659. This is the most important of the three factors. Id. Under this factor, the Court must
determine if the State will ultimately a sorb financial responsibility for a judgment in the case.
I

"Under New Jersey law, when county rosecutors and their subordinates perform law
enforcement and prosecutorial :11nctior, 'they act as agents of the State.' As such, they are
entitled to indemnity under the [New Jfrsey Tort Claims Act] for judgments arising from such
conduct." Harvey v. Cty. ofHuqson, 2 15 WL 9687862, at *5 (D.N.J. Nov. 25, 2015) (citing

Wright v. State, 778 A.2d 443, 461--62, 464 (N.J. 2001)). However, if the alleged misconduct
.

I

involves fraud, actual malice, o:rwillful misconduct, the State ofNew Jersey is not required to
defend and indemnify county prosecutjrs. Wright, 778 A.2d at 465; Hyatt v. Cty. ofPassaic, 340
F. App 'x 833, 83 7 (3d Cir. 2009) (no,g that the Attorney General may refuse to indemnify
under N.J.S.A. § 59-lOA-2 if the act r!ulted from willful misconduct or actual malice).
Here, Plaintiff alleges that De~ dant J anci purposefully lied to Plaintiff's parole officer
by stating that there was a no-contact o der in place which Plaintiff would violate upon his

release. (Comp!. at "Factual Allegatiol Common to All
between an Assistant Prosecutor and a

Counts"~ 4). Although communication

~arole officer relates

to law enforcement or prosecutorial

function, Plaintiff's allegations involv, fraud, malice, or misconduct such that the State would
not be required to defend and indemniif Defendants. Wright, 778 A.2d at 465. While the State is
thus not obligated to represent and indLfy Defendants here, the State appears to have chosen
to do so, such that any judgment woulj come from the State.

6

The New Jersey Supreme Co
indemnify wider N.J.S.A. § 59:1 OA-1

r

has held that the State's obligations to defend and
"wedded together." Wright, 778 A.2d at 444--45. More

speci:fically, the State must "indemni1 employees for whom a defense is provided." Id. at 444
(citing N.J .S.A. § 59: lOA~1). Here, thr ~ffice. of ~e Attorney Gen~ is r~resenting
Defendants. 2 Defendants also represent m their bnef that "the State will ultimately have to
withdraw funds from its treasury to acLwit for being both vicariously liable for their actions and
·responsible for their defense and indeilru:fication." (Defs.' Br., ECF No. 13 at 9). Based on this
statement, the fact that the Office of th Attorney General is representing Defendants, and the
New Jersey Supreme Court's e~planaf on of the State's obligations in Wright, the State appears
to have agreed to represent and indemnify Defendants, satisfying the first Fitchik factor.
b. Fitchik Factor Two:

sil

Under Law

The second Fitchik factor is thj status of the agency wider state law. The focus of the
second factor is "whether state law trelts an agency as independent, or as a surrogate for the
state." Fitchik, 873 F .2d at 662. Cowitt prosecutors are "appointed by the Governor with the
advice and consent of

th~ [State] Sena~.'' N.J. Const. art. VII,§ 11.1. '"The criminal business of

the State' of New Jersey ts 'prosecuted by the Attorney General and the county prosecutors."' In
re Camden Police Cases, 2011 WL 36f 1318, at *8 (D .N.J. Aug. 18, 2011) (citing N .J.S .A. §
2A: 158-4). "Under New Jersey law, when county prosecutors and their subordinates perform
law enforcement and·prosecutorial fun tions, 'they act as agents of the state."' Hyatt v. Cty. of

2

At oral argument on August 24, 2017 Defendant's counsel represented that his office's
representation of Defendants HCPO and Janci evidenced an agreement to indemnify the
Defendants. The Court notes that muldple Courts in this District have found similar agreements
to represent and indemnify a defendant relevant in evaluating the first factor of a Fitchik
analysis. See, e.g., Harvey v. Cty. ofHJdson, 2015 WL 9687862, at *4 (D.N.J. Nov. 25, 2015);
In re Camden Police Cases, 2011 WL B651318, at *5 n.5 (D.N.J. Aug. 18, 2011); Landi v.
Borough ofSeaside Park, 2009.WL 60b141, at *4 (D.N.J. Mar. 9, 2009); Kandi/ v. Yurkovic,
2007 WL 4547365, at *4 (D.N.J. Dec. 18, 2007).
7

Passaic, 340 F. App'x 833, 836 (3d Ci . 2009) (citing Wright, 778 A.2d at 461). As discussed

above, Plaintiff alleged misconduct with respect. to law enforcement and prosecutorial functions.
Defendants HCPO and Janci are not trLted as independent entities under New Jersey law.
Therefore, the Court finds that the secld Fitchik factor is satisfied.
c. Fitchik Factor 1bree: Dlgree of Autonomy
The Third Fitchik factor is the jgency' s degree of autonomy. County Prosecutor's offices
and their employees are subject to supLsion and supersession by the Attorney General.
N.J.S.A. § 52: l 7B-l 06 ("[T]he Attoml General may supersede the county prosecutor for the
purpose of prosecuting all of the crijal business of the State in said county, intervene in any
investigation, criminal action, or proc+ing instituted by the county prosecutor, and appear for
the State in any court or tribunal for th purpose of conducting such investigations, criminal
actions or proceedings as shall be nece sary for the protection of the rights and interests of the
State."). Thus, the Court finds that nei er Defendant HCPO nor Defendant Janci is autonomous.
d. Balancing the Factors
In sum, the Court finds that all

ee Fitchik factors are satisfied. Therefore, Defendant

HCPO and Defendant Janci-to the ex ent that Plaintiff's claims are brought against him in his
official capacity-are entitled to soverr·gn immunity, and these claims are dismissed. 3 However,
as noted above, the Eleventh Amendm .nt does not preclude suits brought against State officials
in their individual capacities, even if thb challenged conduct was part of their official
responsibilities. Hafer, 502 U.S. at 31. bus, Plaintiff's claims against Defendant Janci in his
individual capacity are not dismissed ol this basis.

3

Additionally, at oral argument on August 24, 201 7, Plaintiff's counsel represented that Plaintiff
would no longer be pursuing all claims against Defendant HCPO.
8

II.

Whether Defendant HCPO and Defendant Janci in His Official Ca aci
under 42 U.S.C. 1983 and th NJCRA

are "Persons"

Defendant also argues that Plai tiff's claims must be dismissed because Defendant
HCPO and Defendant Janci in his official capacity are not "persons" amenable to suit under
§ 1983 and the New Jersey Civil Rightl Act (''NJCRA"). Section 1983 imposes liability on
"[e]very person who, under color of Jy statute, ordinance, regulation, custom, or usage, of any
State ... subjects ... any citize1i of th United States or other person within the jurisdiction

laws." 42 U.S.C. § 1983 (emphasis ad ed). Whereas local government bodies and their officials
are "persons" under § 1983, states, state agencies, and state officials acting in their official
capacities are not. Lagano, 769 F.3d at 854 (3d Cir. 2014) (citing Will v. Mich. Dep 't ofState
Police, 491 U.S. 58, 71 (1989); Monen v. Dep 't ofSocial Servs., 436 U.S. 658, 690 (1978)). As
the Third Circuit explained in Lagano, this inquiry cannot be collapsed into the sovereign
immunity analysis. Id. at 857-58, 858 .8.
Like§ 1983, the NJCM creat

a cause of action against a ''person acting under color of

I

law." N.J. Stat. Ann.§ 10:6-2 (emphasis added). In this context, "person" likewise does not
extend to the state itself or state agencifs or officials in their official capacity. Lagana, 769 F.3d
· at 856 ("New Jersey district courts have interpreted the NJCRA as having incorporated the
Supreme Court's decision in Will that, [or purposes of§ 1983, states and state officials acting in
their official capacity are not amenabl to suit."); see also Didiano v. Balicki, 488 F. App'x 634,
637-39 (3d Cir. 2012) (interpreting th definition of"person" inN.J. Stat. Ann.§ 1:1-2).
The question thus becomes wh ther Defendants HCPO and Janci were acting as arms of
the state when performing the alleged ffending conduct. The Third Circuit's decision in
Coleman v. Kaye, 87 F.3d 1491: (3d c·

. 1996), governs this analysis. When New Jersey county
9

prosecutors "engage in classic law en:fl rcement and investigative functions, they act as officers
of the state." Coleman, 87 F.3d .at 1505. When, however, prosecutors "perform administrative
· ·
functions 'unrel.ated to the duti~s involled in crum.nal prosecutions,"' Lagano, 769 F.3d at 855
(quoting Coleman, 87 F .3d at 1505-06 , they are not acting as arms of the state but as county
officials who remain subject to§ 19831 uits. The category of the actions taken, and not their
alleged wrongfulness, is determinative. Whereas personnel or staffing decisions fall within the
administrative ambit of a prosecutor's ffice and therefore "flow from the County," Evans v. City
1

ofNewark, 2016 WL 2742862, at *9 (D.N.J. May 10, 2016), actions taken related to enforcing
the criminal law-including introducinl fabricated evidence at trial-fall within the "law
enforcement and prosecutorial functio s" of the county prosecutor's office and therefore
constitute conduct as an arm of the stat . Id. at * 10.
Here, Defendant J anci alleged! communicated with a parole officer to discuss fabricated
conditions of Plaintiff's release on bail. (Compl. at "Factual Allegations Common to All Counts"
,, 3-4.) Communication on such a sub ect between the prosecuting authority and the accused's
parole officer falls within the tradition~ law enforcement and prosecutorial functions of both
Defendant HCPO and Defendant Janci

L

his official capacity, regardless of the alleged

malicious or fraudulent character of th statement made. Cf. Lagano, 769 F.3d at 855-56
(describing actions taken in the .context of a personal and business relationship by an individual
prosecutor and his office that ex.ceeded the "classic law enforcement and investigative
functions"). Accordingly, both Defendant HCPO and Defendant Janci in his official capacity
were acting as arms of the state and thtfore are not ''persons" under§ 1983 or the NJCRA, and
the claims against them are dismissed on this basis. The§ 1983 and NJCRA claims against
Defendant Janci in his individual capa jity, however, may proceed.

10

III.

Absolute Prosecutorial Ihununi
Defendants also argue that Defendant J anci is entitled to absolute prosecutorial immunity.

The Third Circuit assigns the "heavy b rden" of establishing absolute immunity to the
prosecutor, Light v. Haws, 472 F.3d 74 80-81 (3d Cir. 2007), beginning from a presumption that
the lesser protection of qualified immunity applies. Odd v. Malone, 538 F.3d 202, 207-08 (3d
.

I

Cir. 2008). Prosecutors enjoy absolute immunity from § 1983 claims stemming from "activities .
. . intimately associated with the

ju~ici1.

phase

~f crimin~ ~cess ~mb~er v.
the

...."

Pachtman,

424 U.S. 409, 430 (1976), but quahfij nnmuruty when "actmg m an mvestigative or
administrative capacity ...." Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (citing

Imbler, 424 U.S. at 430; Burns v. Reed 500 U.S. 478 (1991)). Courts must engage a
"'functional' analysis," Giuffre v. Bissju, 31 F.3d 1241, 1251 (3d Cir. 1994), to determine
whether the prosecutor ''was functioning as the state's 'advocate' while engaging in the alleged
conduct that gives rise to the constitutilnal violation." Yarris v. Cty. ofDelaware, 465 F.3d 129,
136 (3d Cir. 2006). The Third Circuit rrects ''bright-line rules that would treat the timing of the
prosecutor's action (e.g. pre- or postin1ictment.), or its location (i.e. in- or out-of-court), as
dispositive." Odd, 538 F.3d at 210.

Accepting Plaintiff's allegations as true and drawing all reasonable inferences in his
favor, absolute immunity is notiapproptate at the motion to dismiss stage. Defendant Janci's
alleged phone call to Plaintiffs parole officer to discuss the conditions of his release on bail was
.not clear! y within the scope of Defendtt J anci' s advocative role. While Plaintiff was already
indicted, the timing of the conduct is not dispositive, and based on the allegations in the
Complaint it seems Defendant Janci's 11eged call was on a matter collateral to his preparation
for judicial proceedings or prosecution

~f the pending domestic violence charges. See Buckley v.

Fitzimmons, 509 U.S. 259, 273 (1993) "A prosecutor's administrative duties and those
11

investigatory functions that do not rela to an advocate' s preparation for the initiation of a
prosecution or for judicial proceedings

e not entitled to absolute immunity."); see also Rose v.

Bartle, 871 F.2d 331, 346 (3d Cir. 198 ) (finding pleadings did not enable the Court to determine

what role defendant-prosecutors were cting in when they relayed confidential grand jury
information to individuals outside of their office).
Defendants cite a litany of cas, granting absolute immunity to prosecutors for clear
advocative acts-e.g. statements and conduct at trial-and investigative acts closely related to
judicial proceedings. See, e.g., KulwicJ, 969 F.2d at 1463--65 (noting that malicious prosecution,
soliciting false witness testimony,

usin~ false testimony in connectiori with a prosecution, and

conducting interviews for grand jury etdence are protected by absolute immunity). However,
because Defendant Janci' s call allegedlr led to Plaintiff's subsequent re-arrest for violating his
2001 CSL, the conduct more closely mirrors cases in which prosecutors acted in a purely
investigative role in deciding ''whether la suspect may be arrested," Buckley v. Fitzsimmons, 509
U.S. 259, 275 (1993), or provided leJ advice to police officers beyond their role as the state's

I,

advocate in an existing prosecution, se e.g., Burns v. Reed, 500 U.S. 478, 496 (1991); Giuffre,
31 F .3d at 1253-54 (extending the reas ning of Buckley and Bums to a situation in which a
1

defendant was already ''under arrest by the Prosecutor's Office"). Defendant J anci' s alleged

conduct is also similar to acting in an atlm.inistrative role by leaving a witness in custody, see,
e.g., Odd, 538 F.3d at 212-16 (charactrzing as "administrative" a prosecutor's failure to alert a

judge to release a third-party witness from custody after the proceeding in which he was set to
testify had ended). Accordingly, the

cdurt does not determine at this time that Defendant Janci is
I

.

entitled to absolute immunity for the alleged conduct.

12

N.

Quali~ed

Immunity

Next, Defendants argue that Defendant Janci is entitled to qualified immunity. When
engaged in discretionary functiqns, "q1ified immunity shields government officials from civil
liability as long 'as their conduct does tot violate clearly established statutory or constitutional

rights of which a reasonable person would have known."' McGreevy v. Stroup, 413 F.3d 359,
364 (3d Cir. 2005) (quoting Harlow v.

~itzgerald, 457 U.S. 800, 818 (1982)). First, a court must

determine what right was violated, andl second, whether the right specifically defined was

clearly established such that "every reasonable official would have understood that what he
[was] doing violates that right." Mulle

lix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation

marks and citation omitted).
Plaintiff has pied violations of 's right not to be deprived of liberty without Due Process
of law under the Fifth and Fourteenth

endments as well as ''the full complement of civil

rights as protected by the provisions of the U.S. Constitution." (Compl. at "First CountViolation of 42 U.S.C. § 1983", 2).

e alleged conduct-that Defendant Janci fabricated

grounds for Plaintiff's re-arrest, thereb subjecting Plaintiff to unlawful detention-.suggests a
violation of Plaintiff's Fourth AmenJent right not to be unreasonably seized, satisfying the first
step. See Groman v. Twp. ofManalapaf, 47 F.3d 628, 636 (3d Cir. 1995) ("A false

imprisonment claim under § 1983 whidh is based on an arrest made without probable cause is
grounded in the Fourth Amendment's larantee against unreasonable seizures."); see also

Schneyder v. Smith, 653 F.3d 313, 32lt22 (3d Cir. 2011).

It is beyond dispute that arresting an individual without probable cause violates a clearly
established right. See, e.g., Orsatti v. lJersey State Police, 71F.3d480, 483 (3d Cir. 1995).
Plaintiff's complaint alleges the relatJscenario of a prosecutor orchestrating a post-release
arrest and subsequent incarceration by lurposefully lying about the existence of a no-contact

13

order, where the arrest otherwise lacked probable clause. A prosecutor "engineer[ing] a false
arrest" constitutes a ''violation of clearll established law

.~at would ~ve been apparent to a

reasonable officer." Evans, 2016 WL 2'42862, at *13 (citing Orsattz, 71 F.3d at 483); see also

Schneyder, 653 F .3d at 330--31 (colleclg cases and holding that a prosecutor's failure to ensure
the release of a person no longer laJly detained violated clearly established law). Accepting
as true the allegations in Plaintiff's co,plaint, Plaintiff sufficiently alleges conduct that violated
a clearly established right: that Defendant J anci "knowingly violate[d] the law," Ashcroft v. a/-

Kidd, 563 U.S. 731, 743 (2011) (quoti,gMalleyv. Briggs, 475 U.S. 335, 341 (1986)), by lying
to Plaintiff's parole officer in order to effect a baseless arrest. 4 Accordingly, the Court cannot
find at this time that Defendant Janci is entitled to qualified immunity. However, the Court
directs the Defendant to file an additio al motion based on the theory of qualified immunity with
fully briefed facts and law.
V.

Whether Intentional Tort Claim a ainst Defendant HCPO are Barred b the New Jerse
Tort Claims Act
Defendants also argue that Plai tiff's claims for intentional torts are barred by the New

Jersey Tort Claims Act ("NJTCA"). Gi1Ven the Court's previous finding, supra Section I, on
Defendant HCPO's enjoyment ofsov eign immunity, the Court need not decide whether

Plaintiff's claims are barred by the NJ

4

Defendants also argue that Defendant J anci is entitled to qualified immunity because Plaintiff
fails to "proffer facts ... to show that [ 's] allegations are plausible." (ECF No. 13-1 at 21-22.)
The Third Circuit has found that ar
ent "legally unsound'' because it is not a plaintiffs
burden to bear for a qualified immunity defense. Thomas v. Independence Twp., 463 F.3d 285,
291-94 (3d Cir. 2006).
14

VI.

Whether Plaintiff has Pied a M licious Prosecution Claim Count III
Lastly, Defendants argue that P aintiff has not adequately pied a claim for Malicious

Prosecution and therefore Count III mu t be dismissed. The parties apparently treat Plaintiffs
Malicious Prosecution claim as a co

on law claim brought pursuant to New Jersey law. The

Complaint does not indicate otherwise, and as a result, the Court assumes that this claim is
brought pursuant to New Jersey comm n law. To establish a New Jersey common law malicious
prosecution claim, a Plaintiff must shot: ( 1) a criminal action was instituted by the defendant
against the plaintiffs, (2) it was actuatei. by malice, (3) there was an absence of probable cause
for the proceedings, and (4) the

criminr proceeding was terminated favorably to the plaintiff.

Lind v. Schmid, 337 A.2d 365, 368

(Nt

1975).

Here, Plaintiff fails to plead thal the criminal proceeding allegedly caused by Defendant
Janci's misconduct was terminated fav0rably to Plaintiff. In his opposition brief, Plaintiff
introduces new facts in an effort to satilfy this factor. It is axiomatic that a party may not amend
his Complaint in an opposition brief.

Sr·

2009 WL 792489, at *13 (D.N.J. Mar.

e.g., Cincerella v. Egg Harbor Twp. Police Dep 't,

f3'

2009) (citing Anderson v. DSM N. V., 589 F. Supp. 2d

528, 534 n.5 (D.N.J. 2008)). However, ie Third Circuit has instructed that where a complaint is
vulnerable to Rule 12(b)(6) dismissal,

t

District Court must permit a curative amendment,

unless an amendment would bejnequiible or futile." Alston v. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). The Court does not find tha1 it would be inequitable or futile to grant Plaintiff leave
to amend his Complaint, and as a resul will do so. The Court will dismiss Count III of the
Complaint without prejudice and grant Plaintiff leave to amend.

15

CONCLUSION
For the reasons stated. herein, D fondants' motion is granted in part. An appropriate order
will fol_low.

16