LEPPING v. COUNTY OF MERCER et al

Filing 29

OPINION filed. Signed by Judge Freda L. Wolfson on 10/23/2018. (mps)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
JUSTIN C. LEPPING,
:
:
Plaintiff,
:
Civil Action No. 18-02118 (FLW) (LHG)
:
v.
:
:
OPINION
COUNTY OF MERCER, MERCER
:
COUNTY PROSECUTOR’S OFFICE,
:
COUNTY OF BUCKS, BUCKS COUNTY :
DISTRICT ATTORNEY’S OFFICE,
:
DETECTIVE ROBERT MCNALLY,
:
DETECTIVE EDWARD HUGHES,
:
DETECTIVE DAVID HANKS,
:
DETECTIVE THOMAS THIEL,
:
DETECTIVE MARTIN MCDONOUGH, :
CHIEF VELDON HARRIS, CHIEF
:
CHRISTOPHER F. MCATEER, JR.,
:
JOHN DOE POLICE CHIEF (a fictitious :
name), CAPTAIN JOHN DOE, (a fictitious :
name), LIEUTENANT JOHN DOE (a
:
fictitious name), SERGEANT JOHN DOE :
(a fictitious name) , JOHN DOE
:
SUPERVISOR (a fictitious name), JOHN :
DOE OFFICER 1-10 (fictitious names),
:
jointly, severally and/or in the alternative, :
:
Defendants.
:
___________________________________ :
WOLFSON, United States District Judge:
Pending before the Court is a motion to dismiss from Defendants the Mercer County
Prosecutor’s Office (“MCPO”), MCPO Detective Robert McNally, MCPO Detective Edward
Hughes, and MCPO Chief Veldon Harris (together, with Hughes and McNally, “Individual
Defendants”) (collectively, “MCPO Defendants”), and a separate motion to dismiss from the
County of Mercer (collectively, with the aforementioned Defendants, “Moving Defendants”).
1

Plaintiff Justin C. Lepping (“Plaintiff”) brought this §1983 suit against Moving Defendants, the
County of Bucks, the Buck’s County District Attorney’s Office (“BCDO”), BCDO Detectives
David Hanks, Thomas Thiel, and Martin McDonough, and BCDO Chief Christopher F.
McAteer, Jr.1 Plaintiff asserts claims seeking punitive and compensatory damages for violations
of his constitutional rights, negligence, and negligent hiring, training, and supervision, in
connection with his arrest on sexual assault charges, which were subsequently dropped. Plaintiff
has since announced his intention not to oppose the County of Mercer’s motion to dismiss and
has voluntarily dismissed the BCDO Defendants from the case.
Because Plaintiff has not opposed the County of Mercer’s motion, this motion is granted
and all claims against the County of Mercer are dismissed. In their motion, MCPO Defendants
maintain that this Court lacks subject matter jurisdiction and that Plaintiff fails to state a claim.
For the following reasons, MCPO Defendants’ motion to dismiss is also granted.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s claims arise from his arrest on sexual assault charges, which were

subsequently dismissed by the MCPO. The events that led to this arrest began in December of
2016, when the MCPO received a tip from the Hamilton Police Department that a 10-year-old
female with the initials O.M. was exchanging communications “of an inappropriate, sexual

nature” with an adult male. Compl. at ¶¶ 22-23.
MCPO Detective Hughes conducted a forensic examination of O.M.’s cellular phone and
concluded that Plaintiff had sent, and received, numerous “Snap Chat,” text, and other messages
of a sexual nature to O.M. Id. at ¶ 27. At that time, MCPO enlisted the help of the BCDO, the
prosecutor’s office where Plaintiff resided, to obtain and execute a search warrant of Plaintiff’s

1

The Court will refer to defendants from BCDO as “BCDO Defendants.”
2

home. Id. at ¶ 30. Detective Hanks of the BCDO then conducted his own review of the forensic
data and concluded that there were over 570 “chats” of a sexual nature between Plaintiff and
OM. Id. at ¶¶ 31-32.
On the morning of January 13, 2017, after obtaining an arrest warrant on charges of
Aggravated Sexual Assault (in violation of N.J.S. 2C:14-2A(l)); Sexual Assault (in violation of
N.J.S. 2C:14-2(b)); Endangering the Welfare of a Child (in violation of N.J.S. 2C:24-n4(a)l)) and
Abuse of a Child (in violation of N.J.S. 24:4(b)5(b)), members of the BCDO arrested Plaintiff in
his home, located in Sellersville, Pennsylvania. Id. at ¶¶ 16 -17.2 Plaintiff was detained and
extradited to New Jersey and was held in the Mercer County Jail, without bail, from January 13,
2017 through March 29, 2017. Id. at ¶ 20.
Following the search and arrest of Plaintiff, Detective McNally filed an affidavit in
support of an application to a New Jersey Superior Court judge to search phones and other
devices recovered from Plaintiff's residence. Id. at ¶ 36. In it, Detective McNally drew the same
conclusions and swore to the same facts and opinions as Detective Hanks. Id. at ¶ 37.3 After the
search warrant was obtained, Plaintiff's phones and electronic devices were searched; however,
none of the seized devices revealed any evidence of contact between Plaintiff and O.M., with the
exception of an incoming FaceTime communication that O.M. initiated. Id. at ¶ 38.

In his Complaint, Plaintiff alleges that the MCPO and “other law enforcement officers” were
somehow involved in the arrest. However, in his opposition brief, Plaintiff has seemingly
conceded that the BCDO acted alone in executing the arrest. ECF No. 21 at 2 (“In the early
morning hours of January 13, 2017, Plaintiff was unlawfully seized and arrested while in his
home, located in Sellersville, Pennsylvania, by members of the Bucks County District Attorney's
Office.”), 13 (“The Bucks County District Attorney's Office was acting at the request and on
behalf of the Mercer County Prosecutor's Office.”)
3
In addition to the allegations related to Detective McNally in the Complaint, Plaintiff also
submits, as an exhibit to its opposition brief, an “affidavit and complaint warrants” that Detective
McNally purportedly prepared prior to the arrest. ECF No. 21-1. As Plaintiff did not include this
exhibit as part of its Complaint, the Court will not consider it at this time.
2

3

While in custody, Plaintiff enlisted the help of a forensic examiner, James Gogoski, to
conduct an independent forensic review of all the electronic data at issue in the case. Id. at ¶ 39.
The examination allegedly confirmed that the only contact between O.M. and Plaintiff was one
FaceTime communication that OM initiated, id. at ¶ 42, and that O.M. initiated two more
FaceTime communications that Plaintiff did not accept. Id. at ¶ 43. According to the
investigation, O.M. obtained Plaintiff’s contact information from the dating website Ashley
Madison, of which Plaintiff was a member. Id. at ¶ 45. Plaintiff contends that “there is no
evidence Plaintiff ever initiated contact with, directed, ordered, demanded, instructed or
otherwise told O.M. to commit acts of sexual nature and/or send any inappropriate photographs
and/or videos.” Id. at ¶ 46. On May 8, 2017, the MCPO dismissed all charges against Plaintiff.
Id. at ¶ 21.
As a result of his arrest and subsequent imprisonment, Plaintiff maintains that he
sustained multiple serious emotional injuries including acute stress, insomnia, depression,
irritability as well as shock to his nervous system. Id. at ¶ 47. He also suffered “mental anguish,
emotional distress and the loss of the enjoyment of daily life,” id., at ¶ 48, and “incur[red]
financial expenses and losses including, but not limited to loss of employment, limited
employment and medical expenses.” Id. at ¶ 50.
On February 14, 2018, Plaintiff initiated the present action against the named defendants.
The Complaint asserts the following claims:
Count I - Claims for False Arrest and False Imprisonment (in violation of
Plaintiff’s Fourth, Fifth, Sixth and Fourteenth Amendment rights) Detectives
Hughes and McNally. Id. at ¶¶ 52-57
Count II - Claims under 42 U.S.C. §§ 1983 and 1988 against all defendants;
alleging these Defendants:

4

have adopted and maintained for many years a recognized and
accepted policy, custom, and practice of condoning and/or the
acquiescence of the use of unlawful seizures, as well as “cover-up”
arrests, and subjecting them to the same type of treatment to which
Plaintiff was subjected, which policy constitutes the use of unlawful
seizures and violates" the Fourth and Fourteenth Amendments of the
U.S. Constitution, and the New Jersey Constitution.
have adopted and maintained for many years a recognized and
accepted policy, custom, and practice of systematically subjecting
citizens to unlawful seizures, false arrests, false imprisonment and
denial of due process, by agents, servants and/or employees, who
were and are now attempting to cover-up for fellow off duty officers,
as is allegedly evidenced by the aforesaid acts of the named
defendants upon the Plaintiff as described in the above paragraphs,
which policy constitutes a violation of the Equal Protection Clause
and Due Process Clause and violates: the Fourth and Fourteenth
Amendments of the U.S. Constitution, and the New Jersey
Constitution.
have been deliberately indifferent to the rights of citizens to be free
from unlawful seizures which violates" the Fourth and Fourteenth
Amendments of the U.S. Constitution, and the New Jersey
Constitution.
knew or should have known of the above described policy, custom
and practice of Defendants, the Mercer County Prosecutor's Office
and that they deliberately, knowingly and intentionally failed to take
measures to stop or limit the policy, custom and practice including
but not limited to, inter alia
(a)

Failure to have clear, concise, and appropriate police
directives;

(b)

Failure to properly supervise and/or control Police
Officers, specifically regarding investigation of
altercations;

(c)

Failure to restrain the use of unlawful seizures and to
have clear concise and appropriate directives regarding
same;

(d)

Failure to have proper counseling, use of force retraining, sensitivity training, psychiatric evaluations, or
supervisory briefing/discussion with members of the

5

police department with prior and ongoing complaints of
unlawful seizures;
(e)

Failure to conduct systematic and complete internal
affairs investigations and commanding officers'
investigation resulting in appropriate and documented
corrective actions at all levels of the Mercer County,
Bucks County and/or Mercer County Prosecutor's
Office and/or Bucks County District Attorney's Office;

(f)

Failure to have in existence and/or maintain proper
personnel training procedures, specifically regarding
unlawful seizures of persons, necessary to prevent the
type of conduct as aforesaid;

(g)

Otherwise acting without due regard for the rights,
safety and position of the Plaintiff herein, in accordance
with the laws of the State of New Jersey, the
Commonwealth of Pennsylvania; and otherwise
violating the ordinances of Defendants County of
Mercer, County of Bucks and/or the Mercer County
Prosecutor’s Office and/or the Bucks County District
Attorney's Office department; Directives of the County
of Mercer, County of Bucks and the Statutes of the
State of New Jersey and the Commonwealth of
Pennsylvania.

(h)

By failing to take action to stop or limit the policy
and/or by remaining deliberately indifferent to the
systematic abuses which occurred in accordance with
and as a direct and proximate result of the policy, the
Defendants, Mercer County, the Chiefs, condoned in,
acquiesced in, participated in, and perpetrated the
policy in violation of the Plaintiff's rights under the"
Fourth and Fourteenth Amendments of the U.S.
Constitution, and the New Jersey Constitution. Id. at ¶¶
58-70.

Count III - Claims under 42 U.S.C. §§ 1981, 1983, 1985(3), 1986 and 1988
against all Defendants alleging they conspired to harm Plaintiff and deprive
Plaintiff of equal protection of the law and of his “rights and privileges: under
the U.S. Constitution and New Jersey Constitution. Id. at ¶¶ 71-78.
Count IV - A negligence claim against all Defendants. Id. at ¶¶ 79-82;

6

Count V - A negligent hiring, training, and supervision claim against the MCPO
and Chief Harris. Id. at ¶¶ 83-85.
On March 27, 2018, Moving Defendants moved to dismiss the Complaint. ECF Nos. 17,
18. MCPO Defendants’ motion asserted that the Complaint should be dismissed on the following
grounds: (I) sovereign immunity; (2) named Defendants are not “persons” under 42 U.S.C. §
1983; (3) Plaintiff's failure to state a plausible claim for false arrest and false imprisonment; (4)
bar to suit based on vicarious liability or respondent superior; (5) qualified immunity, and (6)
good faith immunity. After filing a brief opposing MCPO Defendants’ motion, Plaintiff
submitted a letter to the Court on April 30, 2018, announcing that he would not oppose the
County of Mercer’s motion, ECF No. 25, and on May 18, 2018, Plaintiff submitted a notice of
voluntary dismissal as to the BCDO Defendants, which was entered on August 20, 2018. ECF
No. 27.
II.

LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a

case for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Because subject matter
jurisdiction is required for a district court to reach the merits of a claim, “the court should
consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject
matter jurisdiction, all other defenses and objections become moot.” Bishop v. Department of
Homeland Sec., No. 14-5244, 2015 WL 2125782, at * 2 (D.N.J. May 6, 2015). Unlike a Rule
12(b)(6) motion, there is no presumption of truth attached to the allegations in the complaint
when determining the court’s subject matter jurisdiction. See id.; see also Mortensen v. First
Federal Sav. & Loan Ass’n, 549 F. 2d 884, 891 (3d Cir. 1977).
A Rule 12(b)(1) motion to dismiss is treated as either a “facial or factual challenge to the
court’s subject matter jurisdiction.” Gould Electronics, Inc. v. United States, 220 F. 3d 169, 176
7

(3d Cir. 2000). A facial attack, such as in this case, “is an argument that considers a claim on its
face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because
... it does not present a question of federal law ...”. Constitution Party of Pennsylvania v. Aichele,
757 F. 3d 347, 358 (3d Cir. 2014). In that regard, the court views only the allegations in the
pleadings in the light most favorable to the plaintiff. U.S. ex Rel. Atkinson v. PA. Shipbuilding
Co., 473 F. 3d 506, 509 (3d Cir. 2007).
Defendants also move to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6).
Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed for “[f]ailure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss on
the pleadings, courts “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008) (quotations omitted). Under this standard, the factual allegations set forth in a
complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing
that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must
include “enough factual matter (taken as true) to suggest the required element. This does not

8

impose a probability requirement at the pleading stage, but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”
Phillips, 515 F.3d at 234 (citation and quotations omitted); Covington v. Int’l Ass’n of Approved
Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in
detail the facts upon which he bases his claim. The pleading standard is not akin to a probability
requirement; to survive a motion to dismiss, a complaint merely has to state a plausible claim for
relief.” (citation and quotations omitted)).
Under the current pleading regime, when a court considers a dismissal motion, three
sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to
state a claim.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quotations
omitted). Next, the court “should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. (quotations omitted). Lastly, “when
there are well-pleaded factual allegations, the court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. (quotations and
brackets omitted).
III.

DISCUSSION
A. Sovereign Immunity
Before the Court can consider the merits of Plaintiff’s claims, MCPO Defendants’

assertion that the MCPO has sovereign immunity from Plaintiff’s claims must be addressed. See
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”).
The Eleventh Amendment protects states and their agencies and departments from suit in
federal court regardless of the type of relief sought. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 100 (1984). Thus, based on the doctrine of sovereign immunity, states

9

cannot be sued in federal court, unless Congress has abrogated that immunity or the State has
waived it. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989). The consent to be sued “must be ‘unequivocally expressed’ in statutory text, and cannot
simply be implied.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (citing United
States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)).
Although the language of the Eleventh Amendment refers to only “states,” arms of the
state—including agencies, departments, and officials—are entitled to the protection of Eleventh
Amendment immunity from suit when the state is the real party in interest. See Pa. Fed’n of
Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002); see also Chisholm v.
McManimon, 275 F.3d 315, 323 (3d Cir. 2001). Those entities, by their very nature, are so
intertwined with the state that any suit against them renders the state the real, substantial party in
interest. See Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016). Where there is no
precedent that a particular agency, as a matter of law, is an arm of the state for sovereign
immunity purposes, courts employ a fact-intensive, three-step balancing test, first set out in
Fitchik v. New Jersey Transit Rail Operations, Inc., to ascertain whether a state-affiliated entity
is an arm of the state that falls within the ambit of the Eleventh Amendment. 873 F.2d 655, 659
(3d Cir. 1989).
The Fitchik factors are (1) funding: whether the state treasury is legally responsible for an
adverse judgment entered against the alleged arm of the state; (2) status under state law: whether
the entity is treated as an arm of the state under state case law and statutes; and (3) autonomy:
whether, based largely on the structure of its internal governance, the entity retains significant
autonomy from state control. Id. Each factor involves a fact-intensive inquiry. See Maliandi, 845
F.3d at 84 (quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 546 (3d Cir. 2007)

10

(internal quotations omitted)). The court balances the factors to determine whether an entity
amounts to an arm of the state. See Fitchik, 873 F.2d at 664; Maliandi, 845 F.3d at 84. However,
when the entity at issue is a county prosecutor’s office, courts in the Third Circuit focus on
whether the claims are related to the office’s “classic law enforcement functions” or its
administrative functions. “When [New Jersey] county prosecutors engage in classic law
enforcement and investigative functions, they act as officers of the State.” Coleman v. Kaye, 87
F.3d 1491, 1505 (3d Cir.1996). Eleventh Amendment immunity may not apply, however, when
prosecutorial defendants “perform administrative tasks unrelated to their strictly prosecutorial
functions.” Woodyard v. Cty. of Essex, 514 F. App'x 177, 182 (3d Cir. 2013). The party asserting
the immunity has the burden of production and persuasion. See Bowers, 475 F.3d at 546 & n.25;
Christy v. Pa.Turnpike Comm’n, 54 F.3d 1140, 1144 (3d. Cir. 1995).
At the outset, I note that “Courts within the Third Circuit have consistently held that the
Eleventh Amendment precludes federal suits against New Jersey county prosecutors, as well as
their offices, arising out of their law enforcement functions on the basis that the real party in
interest in these suits is the State of New Jersey.” Duncan v. Office of Passaic Cnty.
Prosecutor, No. 05–1931, 2012 WL 1079471, at *2 (D.N.J. Mar. 30, 2012); see also Beightler v.
Office of Essex Cnty. Prosecutor, 342 F. App'x 829, 832 (3d Cir. 2009) (holding that the Essex
County Prosecutor's Office “was acting as an arm of the state and entitled to immunity under the
Eleventh Amendment” when its prosecutors were performing law enforcing and investigative
functions); Banda v. Burlington Cnty., 263 F. App'x 182, 183 (3d Cir. 2008) (affirming dismissal
of damages claims against individual prosecutors in their official capacities on Eleventh
Amendment grounds), cert. denied, 555 U.S. 896 (2008); Wright v. Middlesex Cnty. Prosecutor's

11

Office, No. 10–1351, 2012 WL 1900646, at *4 (D.N.J. May 24, 2012) (dismissing claims against
the Middlesex County Prosecutor's Office on Eleventh Amendment grounds).
Consistent with this precedent, MCPO Defendants here assert that all three Fitchik
factors weigh in favor of finding the MCPO to be an arm of the state. Plaintiff does not oppose
MCPO Defendants’ argument as to the first and third factors. Regarding the first factor, funding,
MCPO Defendants cite Wright v. State, in which the New Jersey Supreme Court held that when
an employee of a county prosecutor's office is sued for “actions taken in the discharge of their
law enforcement duties,” the State must provide defense and indemnification. 778 A.2d 443,
464-65 (N.J. 2001). MCPO Defendants assert that, here, Plaintiff’s claims clearly relate to the
discharge of the MCPO’s law enforcement duties, and further, the Attorney General's office has
appeared on behalf of MCPO Defendants to defend the claims; thus, the State has assumed
responsibility for the defense and indemnification of MCPO Defendants. See also Adams v. City
of Atlantic City, No. 13–7133, 2014 WL 2094090, at *10 (D.N.J. May 20, 2014) (finding county
prosecutor’s office to be an arm of the state when the defendants asserted, without objection, that
the “State of New Jersey has agreed to defend and indemnify these moving Defendants since
they are employees of the Atlantic County Prosecutor's Office.”). As to the third Fitchik factor,
the agency’s degree of autonomy, MCPO Defendants cite to the Attorney General’s statutory
authority to supervise a county prosecutor in virtually any proceeding and dictate law
enforcement policies for the county’s prosecutor’s office. See In re Camden Police Cases, No.
10-4757, 2011 WL 3651318, at *9 (D.N.J. Aug. 18, 2011) (holding that in view of the statutory
structure set out under New Jersey law, “county prosecutors operate as agents of the State when
they engage in law enforcement activities and act as agents of the county when they engage in
administrative matters”).

12

Plaintiff instead argues that under the second Fitchik factor, New Jersey law has not
treated municipal prosecutor’s offices as arms of the state when faced with allegations like those
here. In that regard, Plaintiff’s argument centers on the issue of whether the MCPO is being sued
for its law enforcement or administrative functions. Plaintiff alleges that the MCPO “developed
and maintained policies exhibiting deliberate indifference to the constitutional rights of persons
in the County of Mercer, inadequately and improperly supervised and trained police chiefs and
police officers in Mercer County,” which are functions that are “appropriately characterized as
administrative, rather than prosecutorial.”4 ECF No 21 at 8. Numerous courts in this district have
rejected this argument, however, finding that failure to train and supervise are squarely within
the law enforcement functions of prosecutors’ offices. See Pitman v. Ottehberg, No. 10–2538,
2011 WL 6935274, at *6 (D.N.J. Dec. 30, 2011) (citing Van de Kamp v. Goldstein, 555 U.S.
335, 344 (2009); In re Camden Police Cases, No. 10-4757, 2011 WL 3651318, at *7-8 (D.N.J.
Aug. 18, 2011) (holding that providing training and supervision to investigators is prosecutorial
function); Landi v. Borough of Seaside Park, No. 07-531, 2009 WL 606141, at *4-5 (D.N.J.
March 9, 2009) (same).
Plaintiff asks the Court not to follow these cases and instead rely on Carter v. City of
Philadelphia to find that the types of training and supervisory activities alleged are not
prosecutorial in nature. 181 F.3d 339 (1999). There, the Third Circuit held that a Philadelphia,
Pennsylvania prosecutor's office's policies regarding training and supervision involved
administration rather than law enforcement, and found that the office was not an arm of the state.

As an initial matter, Plaintiff’s claims leveled at the actual investigation and arrest are clearly
law enforcement functions for which the MCPO is entitled to sovereign immunity. See
Woodyard v. Cty. of Essex, 514 F. App'x 177, 182 (3d Cir. 2013).
4

13

Courts in this district have, on multiple occasions, rejected similar attempts to rely on Carter,
however, because that case turned on Pennsylvania—not New Jersey—law. In In re Camden
Police Cases, for example, the court noted that, “in Carter, the principal case relied on by
Plaintiff, the Third Circuit considered whether, under Pennsylvania law, the Philadelphia District
Attorney's Office was an arm of the Commonwealth of Pennsylvania under the Fitchik factors.”5
2011 WL 3651318, at *7 n.7. In Camden, in contrast, the court was tasked with “analyz[ing]
whether the [Camden County Prosecutor’s Office] is an arm of the State of New Jersey under
New Jersey law.” Id. (citing Hyatt v. Cnty. of Passaic, 340 F. App'x 833, 835 (3d Cir. 2009)).
Here, as in Camden, the question of whether the MCPO is an arm of the state turns on New
Jersey law, so I agree with the conclusion that Carter “is an unreliable guide to the status of a
county prosecutor’s office in New Jersey.” Harvey v. Cnty. of Hudson, No. 14-3670, 2015 WL
9687862, at *5 n. 10 (D.N.J. Nov. 25, 2015) (rejecting plaintiff’s attempt to rely on Carter to
determine whether New Jersey prosecutor’s office was an arm of the state).
Under New Jersey law, the types of training and supervisory decisions at issue here are
clearly prosecutorial in nature. For instance, in Hyatt v. County of Passaic, the common-law
sister of a man who was under investigation on child sexual abuse charges was arrested for
witness tampering after she did not allow her daughter, the alleged victim, to testify. 340 F.
App'x 833, 835 (3d Cir. 2009). After the Passaic County Prosecutor’s Office dismissed the
charges against her, the plaintiff brought suit asserting federal claims challenging the office’s
procedures, policies, and training regarding sexually abused child witnesses. Id. at 837. In

5

For instance, the court in Carter noted that, under Pennsylvania law, the Philadelphia District
Attorney’s office was “funded by the City of Philadelphia and that the funds for any judgment
against it would come from the City,” and not from the state treasury, which “weighed heavily
against a finding of immunity.” Carter, 181 F.3d at 348.
14

affirming the district court’s granting of sovereign immunity to the office, the Third Circuit held
that these types of decisions required “legal knowledge and discretion and therefore was related
to their prosecutorial function.” Id. Here, Plaintiff challenges the MCPO’s procedures, policies,
and training regarding unlawful seizures, which, as in Hyatt, also require legal knowledge and
discretion and, are, therefore, also related to the office’s prosecutorial function.6
Thus, because the Fitchik factors weigh in favor of finding the MCPO to be an arm of the
state, the doctrine of sovereign immunity bars Plaintiff’s claims against the MCPO.
B. Monell Claim Against MCPO Defendants
In Count II, Plaintiff also seemingly brings a Monell claim against the MCPO and against
Chief Harris in his alleged capacity as a municipal policymaker.7 A municipality or municipal
agency may be held liable under Section 1983 only if its official policy or custom causes a
constitutional injury. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 658 (1978)) (stating that, “[w]hen a suit
against a municipality is based on § 1983, the municipality can only be liable when the alleged
constitutional transgression implements or executes a policy, regulation or decision officially
adopted by the governing body or informally adopted by custom.”).
With regard to the MCPO, however, “a Plaintiff cannot circumvent the State's sovereign
immunity by alleging Monell liability under section 1983. Specifically, Monell liability only
attaches to local governments, and does not attach to the State or its agencies.” Rouse v. New

In his opposition brief, Plaintiff attempts to assert that its claims related to “the supervision of
detectives” includes “personnel decisions including placement into specific units.” ECF No. 21
at 10. As the Complaint does not contain any factual allegations supporting such a claim,
however, the Court will construe this assertion as part of Plaintiff’s Monell claim, Count II,
which, as explained in infra. II.B, is also barred by sovereign immunity.
7
Count II names all defendants, but its allegations focus only on the MCPO and on the
supervisory role of Chief Harris.
6

15

Jersey Dep't of Health & Human Servs., No. CV 15-01511, 2015 WL 5996324, at *4 (D.N.J.
Oct. 13, 2015) (internal citations omitted). As such, having found that the MCPO is an “‘arm of
the state’ for Eleventh Amendment purposes, this Court need not analyze whether Plaintiff has
sufficiently plead a claim of Monell liability” against the MCPO. Id. (internal citations omitted).
Nor can Plaintiff sustain a Monell claim against Chief Harris because he is not, as a
matter of law, a municipal policymaker potentially subject to Monell liability. While Monell
liability can apply to a municipal decisionmaker with final authority to create municipal policy,
Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000), here, Chief Harris is an employee
of an agency that is an “arm of the state,” and, is, therefore, a state official. “A suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit against
the official's office. As such, it is no different from a suit against the State itself.” Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Thus, a plaintiff cannot bring a §
1983 claim against a state actor for conduct occurring in his or her official capacity. Id.; see
Smith v. New Jersey, 908 F. Supp. 2d 560, 563 (D.N.J. 2012) (“[S]tate actors in their official
capacities are not persons who may be sued under § 1983.”). As such, Plaintiff cannot bring a
Monell claim against Chief Harris.
Thus, Plaintiff’s Monell claim against the MCPO Defendants must be dismissed.
C. 1983 Claims Against Individual Defendants in Individual Capacity
Plaintiff also asserts constitutional claims against the Individual Defendants in their
individual capacities for false arrest and/or false imprisonment, and conspiracy.
1. False Arrest/False Imprisonment
Generally, to sustain a claim for false arrest and/or false imprisonment under 42 U.S.C. §
1983, it must be established that there was (1) an arrest and (2) it was made without probable

16

cause. James v. City of Wilkes–Barre, 700 F.3d 675, 680 (3d Cir. 2012). In New Jersey, false
arrest and false imprisonment “are merely separate names for the same” cause of action. Roth v.
Golden Nugget Casino/Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J. 1983). When, as here, an arrest
is effectuated pursuant to a warrant, and a plaintiff asserts that , a defendant issued an improper
affidavit of probable cause, a plaintiff must make a two-pronged showing pursuant to the
Supreme Court's decision in Franks v. Delaware, 438 U.S. 154 (1978). Under the Franks test, a
plaintiff challenging the validity of an affidavit of probable cause must allege that “(1) that the
affiant knowingly and deliberately, or with a reckless disregard for the truth, made false
statements or omissions that create a falsehood in applying for a warrant; and (2) that such
statements or omissions are material, or necessary, to the finding of probable cause.” Collins v.
Christie, 337 F. App'x. 188, 192 (3d Cir. 2009) (internal citations omitted); see also Wilson v.
Russo, 212 F.3d 781, 78–87 (3d Cir. 2000); Roberts v. Ziolkowski, No. 12–4763 2014 WL
4662255, at *5 (D.N.J. Sept. 18, 2014).
As an initial matter, here, Plaintiff’s false arrest/false imprisonment claim fails because,
based on the facts in the Complaint, none of individual MCPO Defendants were personally
involved in his arrest or detainment. See Clark v. Prison, No. CV 15-6174, 2016 WL 5858985, at
*3 (D.N.J. Oct. 6, 2016); see also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (“A
defendant in a civil rights action must have personal involvement in the alleged wrongs” to be
liable.) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir. 1988)). Indeed, here,
Plaintiff alleges that, although Detective McNally prepared a probable cause affidavit, it was the
affidavit of BCDO Detective Hanks that led to Plaintiff’s arrest and detainment and that the
BCDO officers carried out the actual arrest. Compl. at ¶¶ 30-34; ECF No. 21 at 2.

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Further, even if Detectives McNally or Hughes were involved in obtaining the warrant or
effectuating the arrest, Plaintiff has not alleged any facts demonstrating knowing, deliberate or
reckless statements or omissions in the warrant. Plaintiff alleges that the warrant was supported
by a forensic review of O.M.’s phone that uncovered evidence of illicit, sexual communications
between Plaintiff and O.M. Even if a subsequence forensic review purportedly exonerated
Plaintiff, nowhere does Plaintiff claim that the detectives fabricated the evidence in the affidavit
or that they did not believe it to be true at the time.
The Court notes that, in his opposition brief, Plaintiff also asserts that that the BCDO
“was acting at the request and on behalf of the Mercer County Prosecutor's Office,” when it
executed the arrest. ECF No. 21 at 2. However, a district court may not consider issues raised for
the first time in a brief. Perry v. Comm'r, 136 F. App'x 461, 462 (3d Cir. 2005). If Plaintiff
wishes to amend his Complaint to assert this allegation, he may do so.8
Thus, because probable cause existed, Plaintiff’s false arrest/false imprisonment claim is
dismissed without prejudice. 9
2. Civil Rights Conspiracy
The Court will also dismiss without prejudice Plaintiff's conspiracy claim
under § 1983 for failure to state a claim for relief. Civil rights conspiracies brought under Section
1983 require a “meeting of the minds,” and to survive screening or a motion to dismiss, plaintiffs
must provide some factual basis to support the existence of the elements of a conspiracy, namely,

As currently pled, it appears that qualified immunity would also bar Plaintiff’s false arrest/false
imprisonment claims. As Plaintiff is being granted leave to amend, however, I will not address
this issue at this time, as any new factual allegations could impact the analysis.
9
Plaintiff also asks to be given the opportunity to amend his complaint to supplement his false
imprisonment/false arrest claims with the arrest warrant and affidavit from Detective McNally
that he attaches to his opposition brief. Plaintiff may also submit this exhibit as part of an
amended complaint.
8

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agreement and concerted action. See Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir.
2008) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)). Here, the Complaint
contains no facts related to a meeting of the minds between MCPO Defendants and any of the
other parties involved in Plaintiff’s arrest or imprisonment. Thus, this claim must also be
dismissed.
D. NJCRA Claims
In Counts II and III, Plaintiff also asserts that MCPO Defendants violated his rights under
the New Jersey Constitution. The Court construes these as claims under the New Jersey Civil
Rights Act (“NJCRA”). The NJCRA was modeled after § 1983, and, thus, courts in New Jersey
have consistently looked at claims under the NJCRA “through the lens of § 1983.” Trafton v.
City of Woodbury, 799 F.Supp.2d 417, 443–44 (D.N.J.2011); Chapman v. New Jersey, Civ. No.
08–4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed the
NJCRA in terms nearly identical to its federal counterpart ....”); Armstrong v. Sherman, Civ. No.
09–716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010) (“[T]he New Jersey Civil Rights Act is a
kind of analog to section 1983 ....”). Accordingly, Plaintiff’s New Jersey State Constitution claim
will be interpreted analogously to his § 1983 claim. Trafton, 799 F.Supp.2d at 443–44; see
Hedges v. Musco, 204 F.3d 109, 121 n. 12 (3d Cir. 2000) (concluding New Jersey’s
constitutional provisions concerning search and seizures are interpreted analogously to the
Fourth Amendment). Because the Court has concluded that there was no violation of Plaintiffs’
constitutional rights in this case, and that Plaintiffs’ § 1983 claims fail, Plaintiff’s NJCRA
claims, also fail, and must, therefore, be dismissed.
E. Tort Claims Against Individual Defendants

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Plaintiff also asserts two common law tort claims against individual defendants:
negligence (Count IV) and negligent hiring, training, and supervision (Count V).10 Under the
New Jersey Tort Claims Act, a person seeking to assert tort claims against a public entity or
public employee must first file a notice of claim with the proper entity within 90 days of the
claim’s accrual. See N.J. Stat. Ann. § 59:8-8; see also Johnson v. United States, 469 F. App’x 79,
81 (3d Cir. 2012). See generally N.J. Stat. Ann. §§ 59:8-1 through 59:8-11.
Here, the Complaint contains no allegations that Plaintiff filed the required notice before
bringing suit. Although Defendants do not raise this argument, the notice requirement under
the Tort Claims Act is “a jurisdictional precondition” to filing a tort claim against public
employees that the Court can address sua sponte. Ptaszynski v. Uwaneme, 371 N.J. Super. 333,
343 (App. Div. 2004) (internal quotations omitted). Here, Plaintiff failed to make the required
demonstration in the Complaint. See Fed. R. Civ. P. 8(a) (“A pleading that states a claim for
relief must contain ... the grounds for the court's jurisdiction[.]”). Because the Complaint does
not allege that Plaintiff filed a notice of tort claims with respect to the MCPO Defendants,
Plaintiff has failed to establish this Court has jurisdiction over Plaintiff's state law claims. See
Thompson v. Lanigan, No. 16-1913, 2017 WL 1536226, at *7 (D.N.J. Apr. 27, 2017).
Plaintiff’s state law tort claims against Individual Defendants are, therefore, dismissed.11

10

Negligence, and negligent hiring, training, and supervision are recognized torts under New
Jersey law. See Scarfi v. Aetna Cas. & Sur. Co., 233 N.J. Super. 509, 515 (App. Div. 1989).
11
In his opposition brief, Plaintiff additionally alludes to a § 1983 claim against Chief Harris in
his individual capacity for his “role in personnel decisions within the Mercer County Prosecutor's
Office.” ECF No. 21 at 15. Plaintiff’s Count V, negligent hiring, training and supervision, is not
raised under § 1983 and appears to be a state common law claim. However, to the extent that
Plaintiff wished to bring this claim under § 1983, it must also fail. In order to bring a suit against
an individual decisionmaker under § 1983, the individual “must have personal involvement in
the alleged wrongs,” which can be shown by “allegations of personal direction.” Wright v.
Warden, Forest SCI, 582 F. App'x 136, 137 (3d Cir. 2014) (citing Rode, 845 F.2d at 1207).
Plaintiff only mentions Harris by name once in his Complaint and does not allege any personal
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IV.

CONCLUSION
For the foregoing reasons, MCPO Defendants’ motion to dismiss Plaintiff’s Complaint is

GRANTED, and Counts II, IV, and V are dismissed with prejudice. Counts I and III against
Individual Defendants in their individual capacities are dismissed without prejudice, and any
amended complaint must be filed within twenty (20) days of this Opinion. In addition, the
County of Mercer’s unopposed motion to dismiss is also GRANTED, and all claims against the
County of Mercer are dismissed with prejudice.

Dated: October 23, 2018

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge

involvement in his arrest, detainment, or in the creation of any unconstitutional polices or
customs.
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