JONES v. MURPHY et al

Filing 9

MEMORANDUM AND ORDER that the Clerk of the Court shall mark cases 15-2629 and 18-10189 as OPEN so that the Court may consider Plaintiff's submission; the Clerk shall file Plaintiff's Motion for Relief in case 18-10189; the Motion for Relief 8 is DENIED WITHOUT PREJUDICE to Plaintiff's filing of an Amended Complaint and request to reopen in case 18-10189; Plaintiff has 45 days from the date of the Memorandum and Order to file an Amended Complaint in case 18-10189; the Clerk of Court shall CLOSE cases 15-2629 and 18-10189. Signed by Chief Judge Freda L. Wolfson on 2/27/2020. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
RICCO N. JONES,
:
:
Plaintiff,
:
Civ. No. 15-2619 (FLW) (LHG)
:
Civ. No. 18-10189 (FLW(LHG)
v.
:
:
MEMORANDUM AND ORDER
MATTHEW MURPHY et al.,
:
:
Defendants.
:
_________________________________________ :

This matter has been opened to the Court by Plaintiff’s filing of a motion pursuant to Fed.
R. Civ. P. 60(b), seeking to reopen Jones v. Walsh, Civ. No. 15-2629, and permitting him to
proceed on a claim for malicious prosecution because he is now able to establish favorable
termination. For the reasons explained below, I will deny the Rule 60(b) motion without
prejudice to Plaintiff’s filing of an Amended Complaint as to his malicious prosecution claim
and a request to reopen in the later-filed action, Jones v. Murphy, Civ. No. 18-10189.
a. The 2015 Complaint – Jones v. Walsh, Civ. No. 15-2629
On April 13, 2015, Plaintiff filed an action, alleging § 1983 claims against Joseph
Walsh, Matthew Murphy, and John Doe defendants, which the Court construed as claims for
false arrest, false imprisonment, and malicious prosecution. See Jones v. Walsh, Civ. No. 152629, ECF Nos. 1 & 3. I permitted the false-arrest and false-imprisonment claims to proceed as
against Walsh only but dismissed the other claims upon initial screening on the basis that the
prosecutor’s office is not subject to § 1983 damages suits and a finding that Murphy’s actions as
a prosecutor were shielded by prosecutorial immunity. Civ. No. 15-2629, ECF Nos. 3 & 4.
Jones subsequently filed a First Amended Complaint alleging claims for false arrest, false
imprisonment, malicious prosecution, selective enforcement, and official misconduct under New

Jersey criminal law against Walsh. See Civ. No. 15-2629, ECF No. 16. On April 7, 2017, upon
another sua sponte screening and accounting for arguments raised in a dismissal motion by
Walsh, I dismissed the false-arrest, false-imprisonment, and selective-enforcement claims as
untimely, dismissed the malicious-prosecution claim for failure to show favorable termination,
and dismissed with prejudice Jones’s claim for official misconduct. Civ. No. 15-2629, ECF Nos.
31 & 32.
Thereafter, Jones filed a Second Amended Complaint, which asserted claims against
Walsh for malicious prosecution and selective enforcement. Civ. No. 15-2629, ECF No. 33. On
March 8, 2018, I granted an unopposed motion by Walsh to dismiss the action. Civ. No. 152629, ECF Nos. 42, 48, 49. I dismissed the malicious-prosecution claim on the basis that Jones
had failed to plead the required favorable-termination element and dismissed the selectiveenforcement claim for failure to plead any personal involvement by Walsh. See Civ. No. 152629, ECF No. 48 at 7–12. This dismissal was without prejudice to account for the possibility
that Jones could, theoretically, at some point attain a favorable termination for the purposes of
bringing a malicious-prosecution claim.
b. The 2018 Complaint – Jones v. Murphy, Civ. No. 18-10189
Several months later, on June 5, 2018, Plaintiff filed a new action, which was docketed as
Jones v. Murphy, Civ. No. 18-10189. In that Complaint, Jones asserted various claims
concerning criminal proceedings against him in 2012 and 2013. (See Civ. No. 18-10189, ECF
No. 1.) Jones’s factual allegations are unclear, but he seems to allege that defendant Joseph
Walsh Jr. (“Walsh”), an officer with the Raritan police department, obtained a warrant for
Jones’s arrest, despite a lack of probable cause, from defendant Judge Robert Reed (“Judge
Reed”). (Id. at 8–9.) Jones contends that Judge Reed subsequently let Walsh present false

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testimony to secure an indictment against Jones and that Judge Reed conspired with the
prosecutor, defendant Matthew Murphy (“Murphy”), and with Jones’s public defender,
defendant Matthew Katzenbach (“Katzenbach”), to coerce Jones into accepting a guilty plea.
(Id. at 9, 11–14.) Jones alleges that Walsh arrested him and gave false testimony as retaliation
for Jones “not cooperating or giving information about crimes that Walsh Jr, thought Plaintiff
had.” (Id. at 11.) Jones contends that Katzenbach, in order to get Jones to sign a plea deal,
misrepresented to him that all “false allegations” had been dismissed, when, in fact, one
remained. (Id. at 14.)
I construed Jones’s complaint as attempting to assert claims under 42 U.S.C. § 1983 for
false arrest, false imprisonment, and malicious prosecution. (ECF No. 1 at 15.) On February 28,
2019, the Court screened the Complaint in Jones v. Murphy, Civ. No. 18-10189, for dismissal
under 28 U.S.C. §§ 1915(e) and 1915A, and dismissed the Complaint without prejudice. The
Court determined that Jones’s claims for false arrest and false imprisonment were facially
untimely—just as they were when the Court dismissed very similar claims in April 2017. (See
Civ. No. 15-2629, ECF No. 31 at 8–11.) Jones made no attempt to demonstrate that his claims
could be found timely under principles of statutory or equitable tolling. Accordingly, I dismissed
the false-arrest and false-imprisonment claims as untimely.
In the screening opinion, I also noted that the limitations period for Jones’s maliciousprosecution claim could theoretically be reset by a decision regarding Jones’s conviction or
sentence that could be construed as a favorable termination. See Curry v. Yachera, 835 F.3d
373, 379 (3d Cir. 2016). As in his prior action, however, Jones failed to allege any facts that
could show a favorable termination, which is a central element to a malicious-prosecution claim.

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See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). Accordingly, I dismissed without
prejudice his malicious-prosecution claim for failure to state a claim.
c. The Rule 60(b) Motion
On June 17, 2019, Plaintiff submitted a motion pursuant to Fed. R. Civ. P. 60(b) in Jones
v. Walsh, Civ. No. 15-2629, seeking an Order vacating the Court’s dismissal of the Second
Amended Complaint as it relates to [the §] 1983 Malicious Prosecution’ claims asserted[.]” (ECF
No. 50 at 2.) Plaintiff appears to assert that he can now establish favorable termination as
required for a malicious prosecution claim, and asks the Court to reopen Jones v. Walsh, Civ.
No. 15-2629, and permit him to proceed on the malicious prosecution claim in his Second
Amended Complaint. Plaintiff has attached a Consent Order from the Superior Court of New
Jersey, Somerset County, Law Division, Criminal Part, dated January 29, 2018. That Order
dismisses Indictment No. 12-07-00504 and vacates Plaintiff’s guilty plea for hindering
apprehension by providing false information in violation of N.J.S.A. 2C:29-3A(7). (See ECF No.
50, Exhibit A; see also Exhibit B, Judgment of Dismissal.)
Rule 60(b) permits courts, on motion, to relieve parties from “a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ...
or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1), (b)(6). From the outset,
Rule 60(b) applies only to final judgments and appears to be the wrong procedural vehicle for
Plaintiff’s request. See Den Be ex rel. Bell v. Hamilton Twp. Mun. Ct., No. 07–1588(JBS), 2008
WL 5156683, at *2 (D.N.J. Dec.5, 2008). As the Court of Appeals has recognized, an order
dismissing a complaint without prejudice ordinarily does not constitute a final order. Ahmed v.
Dragovich, 297 F.3d 201, 207 (3d Cir. 2002). If, however, “the plaintiff no longer can amend
the complaint because ... the statute of limitations has run,” then the dismissal is considered a

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final order. Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 907 F.2d 1408, 1416 (3d
Cir.1990); see also Ahmed, 297 F.3d at 207; Core Commc’ns, Inc. v. Verizon Pa., Inc., 493 F.3d
333, 337 (3d Cir. 2007) (“Ordinarily, an order dismissing a complaint without prejudice is not a
final order unless the applicable statute of limitations would not permit the re-filing of the
claims.”). At the time Plaintiff filed his Rule 60(b) motion, the statute of limitations on the
malicious prosecution claim had not yet run if I calculate the two-year period from January 29,
2018, the date the Indictment was dismissed and Plaintiff’s conviction was vacated.
In addition, if I were to provide relief under Rule 60(b) and reinstate either of Plaintiff’s
cases, they would be subject to dismissal again because the Complaints in both actions do not
plead favorable termination, which is a requirement for a malicious prosecution claim. Thus, it
appears that the proper course of action is for Plaintiff to submit an Amended Complaint
pursuant to Fed. R. Civ. P. 15, accompanied by a request to reopen. In light of Plaintiff’s pro se
status and timeliness concerns, I will direct the Clerk of the Court to docket the motion for Rule
60(b) relief in Jones v. Murphy, Civ. No. 18-10189. I will deny the motion for relief under Rule
60(b) without prejudice to Plaintiff’s filing of an Amended Complaint that sets forth all facts in
support of Plaintiff’s malicious prosecution claim in Jones v. Murphy, Civ. No. 18-10189,
accompanied by a request to reopen. 1 If Plaintiff files the request to reopen and an Amended

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Plaintiff’s Amended Complaint must provide facts to support each element of a malicious
prosecution claim. “To prove malicious prosecution under [§ ] 1983, a plaintiff must show that:
(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in plaintiff’s favor;
(3) the proceeding was initiated without probable cause;
(4) the defendants 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.”
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Complaint in Jones v. Murphy, Civ. No. 18-10189 within 45 days of the date of this
Memorandum and Order, the Court will deem it filed as of June 17, 2019, the date he submitted
his Rule 60(b) motion for filing.
IT IS, THEREFORE, on this 27th day of February 2020,
ORDERED that the Clerk of the Court shall mark Jones v. Walsh, Civ. No. 15-2629 and
Jones v. Murphy, Civ. No. 18-10189 as OPEN so that the Court may consider Plaintiff’s
submission; and it is further
ORDERED that the Clerk of the Court shall docket Plaintiff’s Motion for Relief
Pursuant to Fed. R. Civ. P. 60(b) (ECF No. 50) in Jones v. Murphy, Civ. No. 18-10189; and it is
further
ORDERED that the Motion for Relief Pursuant to Fed. R. Civ. P. 60(b) (ECF No. 50) is
DENIED WITHOUT PREJUDICE to Plaintiff’s filing of an Amended Complaint and request
to reopen in Jones v. Murphy, Civ. No. 18-10189, within 45 days of the date of this
Memorandum and Order; and it is further
ORDERED that if Plaintiff files an Amended Complaint in Jones v. Murphy, Civ. No.
18-10189, within 45 days of the date of the Memorandum and Order, the Court will deem it filed
as of June 17, 2019; and it is further
ORDERED that if Plaintiff fails to file an Amended Complaint within the time specified
by the Court, any Amended Complaint filed in Jones v. Walsh, Civ. No. 15-2629 or Jones v.
Murphy, Civ. No. 18-10189, may be subject to dismissal as untimely; and it is further

Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (quoting Estate of Smith v. Marasco, 318
F.3d 497, 521 (3d Cir. 2003)).

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ORDERED that the Clerk of the Court shall docket this Memorandum and Order in
Jones v. Walsh, Civ. No. 15-2629 and Jones v. Murphy, Civ. No. 18-10189; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order to Plaintiff at the
address on file and CLOSE Jones v. Walsh, Civ. No. 15-2629 and Jones v. Murphy, Civ. No. 1810189, accordingly.

/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge

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