ELFAR v. TOWNSHIP OF HOLMDEL et al
Filing
69
MEMORANDUM OPINION Filed. Signed by Judge Robert Kirsch on 2/5/2024. (jal, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NEDAL ELFAR,
Plaintiff,
Civil Action No. 22-5367 (RK) (JBD)
V.
TOWNSHIP OF HOLMDEL, MATTHEW
MEMORANDUM OPINION
MENOSKY, MICHAEL SASSO, and JOHN
MIODUSZEWSKI,
Defendants.
KIRSCH, District Judge
THIS MATTER comes before the Court upon a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) filed by Defendants Township of Holmdel, Matthew Menosky,
Michael Sasso, and John Mioduszewski (collectively "Defendants"). (ECF No. 66-4, "Def.
MTD.") The Court has carefully considered the record and the parties' submissions and decides
the matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil
Rule 78.1. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED, and
Plaintiffs claims are dismissed without prejudice.
I. BACKGROUND
A. FACTUAL BACKGROUND1
On July 4,2016,at approximately 2:54 a.m., Defendants Matthew Menosky ("Menosky")
and Michael Sasso ("Sasso") initiated a traffic stop of Plaintiff Nedal Elfar ("Plaintiff) in
1 The parties dispute what materials are properly before the Court on Defendants' Motion to Dismiss. Prior
to the commencement of this malicious prosecution action, Plaintiff was convicted in two Holmdel
municipal court trials before being acquitted on a de novo appeal in the Law Division of the New Jersey
Holmdel, New Jersey. (Second Amended Complaint ("SAG"), ECF No. 58 ^ 11.) Menosky and
Sasso were patrolman with the Holmdel Police Department. (SAG ^ 8-9.) At the time of the
traffic stop, Sasso was a new officer with Menosky serving as his "training officer." {Id. ^ 21.) The
stated bases for the traffic stop were speeding and failing to disengage high beams, also referred
to as multiple-beam lighting. (Id. ^ 11, 21.)
The police vehicle driven by Menosky and Sasso was equipped with a dashcam and
microphone system, known as an "MVR." {Id. ^ 12.) The MVR was engaged at the time the stop
began. (M) After Menosky and Sasso effected a traffic stop of Plaintiffs vehicle, Sasso
approached the driver's side of the vehicle, while Menosky approached the passenger side. (Id. ^
13.) Sasso asked Plaintiff if he had been "drinking." (M) Plaintiff was not immediately removed
from the vehicle. (Id.) While Sasso spoke with Plaintiff, Menosky shined a flashlight into the
vehicle through the window. {Id.} It is during this time that Sasso would later testify he smelled
' 'burnt marij uana.' ' (Id.)
Superior Court. Both parties rely extensively on documents submitted as part of the records of those
proceedings as well as the factual and legal conclusions of the municipal court and Law Division judges.
In evaluating a motion to dismiss, courts may consider "documents that are attached to or submitted with
the complaint... and any matters incorporated by reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotation marks and citation omitted). Judicial
proceedings are public records of which courts may take judicial notice. Sands v. McCorjnick, 502 F. 3d
263, 268 (3d Cir. 2007). However, on a motion to dismiss, a court "may take judicial notice of another
court's opinion—not for the truth of the facts recited therein, but for the existence of the opinion, which is
not subject to reasonable dispute over its authenticity." 5'. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 427 (3d Cir. 1999) (citation omitted). A court may also consider
"undisputedly authentic documents] that a defendant attaches as an exhibit to a motion to dismiss if
plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993). While the Court takes judicial notice of the existence and legal effect
of the municipal court and Law Division proceedings, the Court will not simply accept the truth of the facts
recited in those proceedings. The full record submitted to the Court is more appropriate on a motion filed
pursuant to Federal Rule of Civil Procedure 56.
Through the passenger window, Menosky noticed a pill bottle in plain view and told Sasso
to inquire about Plaintiffs medications. (Id. ^ 14.) Sasso obliged, and Plaintiff responded that he
had diabetes. (Id.) Menosky then also noticed foil packs with tear-off medications in the center
console and a pill bottle tucked into one of the back seats in plain view. (Id.) Neither the bottles
nor the foil packs had labels removed or any suspicious qualities about them. (Id.) At this time,
Menosky asked Plaintiff is he could inspect the pill bottle in the back seat. (Id. ^ 15.) Plaintiff was
not given a consent-to-search form nor was he advised that he could decline the search. (Id.)
Plaintiff provided the pill bottle to Menosky. (Id.) Menosky opened the bottle and detected that it
contained a small amount of marijuana. (Id.) At this point, Menosky ordered Plaintiff to exit his
vehicle. (M)
Menosky then asked Plaintiff if he had been smoking marijuana. (Id. ^ 16.) Plaintiff
responded that he had smoked the day before. (Id.} Menosky then conducted a field sobriety test
on Plaintiff. (M) According to Plaintiff, he "passed the field sobriety test to any reasonable
person." {Id.) After conducting the field sobriety test, Menosky asked Sasso "are you on?,"
pointing his flashlight at Sasso's belt where there is a button to mute the microphone on the MVR.
(Id. ^ 17.) In response to Menosky's question, Sasso muted the MVR. (Id.) According to the
officers' arrest reports, during the course of the traffic stop, Menosky and Sasso discussed whether
probable cause existed to arrest Plaintiff. (Id. H 18.) This included discussion of Menosky's
"observations" and "findings" as to Plaintiffs performance on the field sobriety test. {Id. ^[ 3537.) Because this conversation is not reflected elsewhere on the un-muted MVR, Plaintiff alleges
that the discussion must have taken place during the time that the MVR was muted. (Id. ^ 18.)
According to Plaintiff, Holmdel police officers routinely mute the MVR to confer about probable
cause for driving-while-impaired ("DWI") and related offenses. (Id.)
Thereafter, Plaintiff was arrested and charged with a DWI, reckless driving, speeding, use
of multiple-beam lighting, drug possession by a motor vehicle operator, possession of fifty (50)
grams or less or marijuana, use or possession of marijuana with intent to use, and possession, use,
or being under the influence of marijuana. (Id. 1H[ 19, 21.) According to Plaintiff, there was "no
evidence to establish that marijuana was in [Plaintiff's] body while he was driving in a sufficient
amount to cause 'substantial diminution9 of 'mental faculties' or 'physical capability,' a
requirement for probable cause to prosecute and to prove [DWI] on marijuana." {Id. ^ 19.) The
charges were signed by Sasso as the complaining witness based upon the determinations and orders
ofMenosky. {Id. ^21.) Plaintiff was brought to the Holmdel police station and his vehicle was
impounded. (Id. ^ 19.) Plaintiff had to pay "hundreds of dollars in towing fees to release it." (M)
Plaintiff alleges that Sasso and Menosky violated Holmdel's MVR policy which requires
that "[a]ll motor vehicle stops" are recorded "from the point of emergency . . . through the entire
incident." (Id. ^46.) The policy also provides that if an MVR is muted during the course of a traffic
stop, officers "must announce it and state the reason for muting"—neither of which occurred
during Plaintiff's traffic stop. (Id.) Notwithstanding this policy, Plaintiff alleges that Defendant
Township of Holmdel ("Holmdel") has a pattern and practice of committing constitutional
violations, pertaining to officers' use of MVRs. (Id. ^ 3.) Under Holmdel's MVR policy, police
department supervisors were required to randomly review MVRs to "ensure officers ... are acting
within the scope of their authority and constitutional mandate . ..." (Id. ^ 48.) According to
Plaintiff, Menosky and Sasso's behavior demonstrates that department supervisors "either
conducted such random reviews, saw improper muting of MVRs and ignored it, or conducted no
such random reviews and would have seen such improper muting had they done so." (M)
Holmdel's "failure to adequately review the MVRs caused continuous muting of MVRs when
Holmdel police officers confer on probable cause for [DWI] and other related offenses." (M ^ 61.)
Plaintiff also filed a common law records request with Holmdel for twenty-eight (28) MVRs that
Plaintiff suspected contained MVR muting during a DWI or similar arrest. {Id. ^ 50.) According
to Plaintiff, several MVRs reflect "apparent improper muting of the [MVR] to confer on probable
cause." {Id. H 51.) Plaintiff further alleges that Menosky was repeatedly recognized by the Holmdel
Police Department for his volume of DWI arrests and that the sheer volume of DWI arrests
effectuated by Menosky "should have caused the Holmdel Police Department to review the MVR
for at least some of them." (Id. ^ 52.) According to Plaintiff, "but for the muted MVR,
[Defendants'] malicious prosecution of [Plaintiff] would not have occurred or would have ceased
far earlier." (M)
Plaintiff also alleges that Holmdel does not adequately train or supervise its officers on the
"substantial diminution" standard for DWIs based on marijuana and that at the time of Plaintiff s
traffic stop, Holmdel Police Department "had no written training or guidance" on the "substantial
diminution" standard. (Id. ^[ 48, 62.) Further, Plaintiff alleges that Holmdel police officers are not
adequately trained or supervised in the consent-to-search and plain view doctrines as evidenced
by Menosky's conflation of the doctrines. (Id. ^ 62.) Finally, Plaintiff alleges that Holmdel's
custom of requiring police officers to "grant permission to dismiss charges" is a "pattern and
practice that inexorably leads to malicious prosecution." (Id. ^[61.)
B. PROCEDURAL HISTORY
On February 13, 2017, Plaintiff was tried on the above-mentioned charges in Holmdel
municipal court. (Id. ^ 22.) During the course of the trial, Plaintiff discovered that the MVR was
muted when Menosky conferred with Sasso about Menosky's observations regarding Plaintiffs
field sobriety test. {Id. ^ 28.) The municipal court found Plaintiff guilty of the DWI and possession
of marijuana offenses but dismissed the speeding and multiple-beam lighting charges. (Id. ^ 29.)
Plaintiffs driver's license was suspended, and Plaintiff was ordered to participate in a DWI
remedial course, which took between twelve (12) and twenty-four (24) hours and cost Plaintiff
"thousands of dollars." (Id.) Plaintiff filed a de novo appeal of his conviction to the Law Division
of the New Jersey Superior Court. (Id. ^ 30.) While the appeal of his conviction was pending, the
Monmouth County Prosecutor's Office agreed to a consent order wherein Plaintiff was permitted
to drive for limited reasons, including work or emergencies, between 9:00 a.m. and 5:00 p.m. (Id.)
However, the New Jersey Department of Motor Vehicles ("DM V") did not recognize the order
and continued to list him as "suspended" in its database, forcing Plaintiff to carry the consent order
with him. (Id.) On one occasion, Plaintiff was "stopped and threatened with arrest because he was
listed as 'suspended' in the database." {Id.}
On October 27, 2017, the Monmouth County Prosecutor's Office consented to remand
Plaintiff's appeal to municipal court. (Id. 131.) Thereafter, Plaintiff filed a motion for a new trial.
(Id. ^ 32.) The basis for the new trial was the revelation that the MVR had been muted during the
traffic stop. {Id. ^31.) While Plaintiff's motion was pending, the municipal prosecutor wrote to
Plaintiffs counsel indicating that Defendant John Mioduszewski ("Mioduszewski"), former chief
of the Holmdel Police Department, had spoken to the judge ex parte and that the prosecutor was
now precluded from dismissing the DWI charge. (Id. ^ 32.) In a number of other correspondences,
the municipal prosecutor indicated that, although she would love to resolve the case, the judge and
Mioduszewski wanted the case to "run it's [sic] course." (Id.) During this time, Plaintiff "was
subject to the same onerous driving restrictions precluding driving after 5:00pm," and his license
remained suspended in the DMV database. {Id. ^ 34.)
Plaintiffs motion for a new trial was granted, and on December 7, 2018, Plaintiff was tried
for a second time in Holmdel municipal court, this time before a different municipal judge. (Id. ^
33-34.) On December 14, 2018, Plaintiff was again convicted. {Id. T[41.) The municipal court
imposed over $1,000 in fines and suspended Plaintiffs driver's license for six (6) months. {Id.)
Plaintiff again filed an appeal to the Law Division. (Id. ^ 42.) On August 3, 2022, the Law Division
acquitted Plaintiff on all charges. {Id. ^ 43; see also ECF No. 32-4.)
On September 1, 2022, Plaintiff filed the instant federal suit against Defendants. (ECF No.
1.) On December 2, 2022, Plaintiff filed an Amended Complaint, (ECF No. 22), and on July 31,
2023, Plaintiff filed a Second Amended Complaint, which is now the operative pleading, (SAG.)
In Count One, Plaintiff brings claims against Menosky, Sasso, and Mioduszewski ("Law
Enforcement Defendants") under 42 U.S.C. § 1983 ("Section 1983") and New Jersey Civil Rights
Act ("NJCRA") for malicious prosecution in violation of the Fourth Amendment of the United
States Constitution and its New Jersey analog. {Id. ^ 63-69.) In Count Two, Plaintiff brings
claims against Holmdel under Section 1983 and the NJCRA for municipal liability based on a
pattern and practice of constitutional violations that proximately caused Plaintiff's constitutional
injuries. (Id. ^70-73.) In Count Three, Plaintiff brings a common law claim for malicious
prosecution. {Id. ^74-78.)
Plaintiff alleges that he has suffered significant and lifelong damages including tens of
thousands of dollars in legal fees, thousands of dollars in fines, and onerous restrictions on his
driving privileges. (Id. ^ 60.) Plaintiff further alleges that the traffic stop, arrest, and prosecution
2 Defendants moved to dismiss on January 5, 2023. (ECF No. 30.) On March 12, 2023, Plaintiff moved to
file a Second Amended Complaint. (ECF No. 44-1.) Several days later, the Court administratively
terminated Defendants' motion pending decision on Plaintiff's motion to file an Amended Complaint. (ECF
No. 48.) On July 26, 2023, the Honorable Brendan Day, U.S.M.J., granted Plaintiffs request to file the
second amended complaint. (ECF No. 57.)
were "substantial factor[s] in his divorce from his wife" for which he continues to suffer emotional
distress and which caused severe embarrassment, forcing him to move from the small EgyptianAmerican community in which he resided. {Id.) Plaintiff seeks compensatory, emotional distress,
reputational, nominal, and punitive damages as well as attorney's fees and costs. {Id. at 28-29.)
On January 6, 2023, Plaintiff filed a Motion for Partial Summary Judgment. (ECF No. 32.)
In it, Plaintiff asked the Court to preclude Defendant from contesting the unconstitutionality of his
search, arrest, and prosecution based on the doctrine of collateral estoppel. (ECF No. 32-1 at 1011.) Plaintiff argued that this issue was determined by the Law Division during Plaintiffs de novo
appeal and should bind Defendants in this proceeding. (Id.} The Court denied Plaintiffs Motion
based on the absence ofprivity between Defendants in this case and the State in Plaintiff's state
court proceedings and because granting the use of offensive collateral estoppel would offend
principles of fairness. (ECFNo. 55 at 11, 14.)
Thereafter, on September 26, 2023, Defendants filed a Motion to Dismiss the Second
Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def. MTD.) Plaintiff
filed a Brief in Opposition, (ECF No. 68, "Pl. Opp."), and Defendants filed a Reply, (ECF No. 645, "Def. Reply"). Now pending before the Court is Defendants' Motion.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure (12)(b)(6), a court may dismiss a complaint for
"failure to state a claim upon which relief can be granted." For a complaint to survive dismissal, it
"must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the court must accept all wellpleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of
the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); In re
Lipitor Antitrust Litig., 336 F. Supp. 3d 395, 406 (D.N.J. 2018). "A pleading that offers labels and
conclusions or a formulistic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement/" Iqbal,
556 U.S. at 678 (citations and quotation marks omitted).
HI. DISCUSSION
The Court will begin with Plaintiffs constitutional malicious prosecution claims.
A. MALICIOUS PROSECUTION
Plaintiff brings malicious prosecution claims premised on the federal and New Jersey
Constitutions pursuant to Section 1983 and the NJCRA respectively. To state a claim under Section
1983, a plaintiff must establish that (1) the conduct deprived a plaintiff of rights, privileges, or
immunities secured by the Constitution or laws of the United States and (2) the conduct challenged
was committed by a person acting under color of state law. See Gomez v. Toledo, 446 U.S. 635,
640 (1980); Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 K3d 141, 146 (3d Cir. 2005).
To state a claim for malicious prosecution in violation of the Fourth Amendment of the
United States Constitution, a plaintiff must show:
(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in plaintiffs 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.
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003); Curry v. Yachera, 835 F.3d 373,
379-80 (3d Cir. 2016). The analysis for a New Jersey Constitutional malicious prosecution claim
is the same as a federal Constitutional claim. See Estate of Martin v. U.S. Marshals Serv. Agents,
649 Fed. Appx. 239, 245 n.4 (3d Cir. 2016) (holding that "it appears undisputed that [p]laintiffs'
claims under the New Jersey Constitution and the New Jersey Civil Rights Act trigger the same
legal elements and principles as ... [the] federal causes of action [under Section 1983]"); Lucia v.
Carroll, No. 12-3787, 2014 WL 1767527, at *5 (D.N.J. May 2, 2014) (finding that the analysis
for plaintiff's Article 1, Paragraph 7 of the New Jersey Constitution malicious prosecution claim
was the same as its Section 1983 claims). Accordingly, the Court will apply the same standard to
Plaintiffs malicious prosecution claims brought under the federal and New Jersey Constitutions.
Plaintiff alleges the traffic stop, arrest, and prosecution "were without probable cause."
(SAG H 66.)3 Plaintiff further alleges that the Law Enforcement Defendants acted with malice or
improper purpose because (1) no reasonable officer could have found "substantial diminution"
based on Plaintiff's field sobriety test, (2) Menosky and Sasso gave several different accounts of
what was said while the MVR was muted, (3) Menosky and Mioduszewski would not allow
dismissal of Plaintiff's DWI charge, in part based on ex parte conversations between
Mioduszewski and the municipal court judge ensuring the continuation of Plaintiff's prosecution.
{Id. ^ 67.) Plaintiff also alleges that he suffered a deprivation of liberty, including that he was
detained for at least one hour "after the initiation of charges against him, i.e. the summonses," his
car was "seized for several hours," he was "required to appear no less than 17 times in municipal
court," he was served with over forty (40) notices to appear, and he was subjected to onerous
3 Contrary to Plaintiff's assertion, as a matter of law, the legal standard for a vehicular stop is not probable
cause—rather, an officer must have "a reasonable and articulable suspicion that the driver of a vehicle, or
its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify
a stop." State v. Scriven, 140 A.3d 535, 542 (2016).
10
driving restrictions. (Id. ^ 65.) Finally, Plaintiff alleges that the proceedings ended favorably for
him as he was acquitted on all charges. (Id. H 68.)
Defendants raise two challenges to Plaintiffs malicious prosecution claim. First,
Defendants argue that Plaintiff failed to demonstrate he was seized, or suffered a deprivation of
liberty pursuant to a legal proceeding as required for a malicious prosecution claim. (Def. MTD at
27-31.) Relatedly, Defendants also contend Plaintiffs alleged damages were not caused by a
seizure as a result of legal process; rather, his damages are the result of his conviction and sentence
and are thus not cognizable in an action for malicious prosecution. {Id. at 31-33.) Second,
Defendants argue that there was probable cause to arrest Plaintiff with a DWI and with possession
of marijuana. (Id. at 33-39.) Defendants do not contest element one (that Defendants initiated a
criminal proceeding) or element two (that the criminal proceeding ended in Plaintiff's favor). Nor
do Defendants contest element four (that defendants acted maliciously or for an improper purpose)
for Plaintiffs constitutional malicious prosecution claims. As such, the Court will begin with
Defendants' argument that plaintiff failed to allege he suffered a deprivation of liberty as a
consequence of a legal proceeding.
a. Deprivation of Liberty
i. Overview
The Third Circuit has explained that a "prosecution without probable cause is not, in and
of itself, a constitutional tort." See Gallo v. City of Philadelphia, 161 F.3d 217,224 (3rd Cir. 1998).
"The type of constitutional injury the Fourth Amendment is intended to redress is the deprivation
11
of liberty accompanying prosecution, not prosecution itself." DiBella v. Borough ofBeachwood,
407 F.3d 599, 603 (3d Cir. 2005).4
The critical issue in this case is the relevant time period for a malicious prosecution claim.
Although both cognizable under the Fourth Amendment, malicious prosecution claims and false
arrest claims differ in that a "claim for false arrest, unlike a claim for malicious prosecution, covers
damages only for the time of detention until the issuance of process or arraignment, and not more."
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (citations omitted). Once a plaintiff is bound
over by a magistrate, arraigned, or issued a summons, then any further detention forms the basis
for the "entirely distinct" tort of malicious prosecution, which does not remedy detention without
legal process, but rather, the "wrongful institution of legal process." Wallace v. Kato, 549 U.S.
384, 390 (2007) (emphasis in original). The relevant seizure "must occur chronologically after the
pressing of charges." Basile v. Twp. of Smith, 752 Supp. 2d 643, 660 (W.D. Pa. 2010); see also
Roberts v. Caesar's Ent., Inc., 72 F. Supp. 3d 575, 581 (E.D. Pa. 2014) ("What occurred prior to
4 Plaintiff argues that this principle from DiBella was "expressly rejected" by the Supreme Court in
Thompson v. dark, 596 U.S. 36 (2022). (Pl. Opp. at 24.) Plaintiff quotes the following language from
Thompson, 596 U.S. at 43: "the gravamen of the Fourth Amendment claim for malicious prosecution, as
this Court has recognized it, is the wrongful initiation of charges without probable cause. And the wrongful
initiation of charges without probable [] cause is likewise the gravamen of the tort of malicious
prosecution." (Pl. Opp. at 24-25.) Plaintiff's argument is both incorrect and misleading. The Supreme Court
in Thompson did not consider what constitutes a deprivation of liberty for element five of a malicious
prosecution claim. Rather, the Supreme Court explained that the "narrow dispute in this case concerns one
element of the Fourth Amendment claim under § 1983 for malicious prosecution." Thompson, 596 U.S. at
43 (emphasis added). That element was element two—whether the prosecution ended in the plaintiffs
favor—which is not at issue in this case. Id. at 41, 44. Moreover, the language quoted by Plaintiff was only
for the purpose of stating that the most analogous tort to a Fourth Amendment malicious prosecution claim
is a tort claim for malicious prosecution. Id. at 43. The Supreme Court neither expressly nor impliedly
overruled DiBella, which this Court finds remains good law.
12
the prosecution, that is, the time between arrest and the lodging of formal charges, is not a basis
for a malicious prosecution claim.").
Against this backdrop, in the Third Circuit, a warrantless arrest lacking probable cause is
not a seizure for purposes of a malicious prosecution claim. See Laufgas v. Patterson, 206 F. App'x
196, 198 (3d Cir. 2006) (plaintiff's arrest and two-hour detention occurred "prior to the filing of
any criminal complaint" and therefore "cannot serve as the basis for [plaintiff's] malicious
prosecution claim."); Dinoia v. Cumbo, No. 2:12-03175, 2015 WL 6739114, at *3 (D.N.J. Nov. 4,
2015) ("To show deprivation of liberty, it is not enough that a plaintiff contend that he was
arrested."); Robinson v. Fettennan, 378 F. Supp. 2d 534, 544-45 (E.D. Pa. 2005) (same).
Furthermore, the Third Circuit has repeatedly held that the relevant period of detention for
a malicious prosecution claim does not include post-cowiction detention. Donahue v. Gavin, 280
F.3d 371, 380 (3d Cir. 2002); see also Laufgas, 206 F. App'x at 198 (same); DiBella, 407 F.3d at
603 (same); Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998) (same). In short, malicious
prosecution claims are concerned with pretrial restrictions once formal charges have been levied.
To these ends, the Third Circuit has explained that "[pjretrial custody and some onerous types of
pretrial, non-custodial restrictions constitute a Fourth Amendment seizure." DiBella, 407 F.3d at
603 (emphasis added).
In this case, Plaintiff alleges that he was seized within the meaning of the Fourth
Amendment in the following ways: (1) he was arrested; (2) his vehicle was impounded; (3) he was
held at the police station after he was charged; (4) he was required to appear in municipal court for
his trials; and (5) following his initial municipal court trial, his license was suspended and he was
13
required to complete a DWI course before a consent order was issued wherein he was subjected to
certain driving restrictions.
First, as the Court noted above, the relevant time period for a malicious prosecution claim
is after an arrest and initiation of charges—in this case, after a Complaint-Summons was issued to
Plaintiff. As noted above, courts in the Third Circuit have expressly held that a warrantless arrest
is not a cognizable seizure for a malicious prosecution claim because it is not the consequence of
a legal proceeding. Thus, Plaintiffs arrest itself does not provide a basis for a Fourth Amendment
seizure for purposes of a malicious prosecution claim.
Second, Plaintiffs appearance in municipal court for trial is also insufficient for a Fourth
Amendment seizure. The Third Circuit has held that "the Fourth Amendment does not extend
beyond the period ofpretrial restrictions." DiBella, 407 F.3d at 603; see also Torres, 163 F.3d at
174 ("the limits of the Fourth Amendment protection relate to the boundary between arrest and
pretrial detention"). Moreover, the Third Circuit has detemiined that the issuance of a summons
and subsequently having to attend one's own trial, without more, is "not a government 'seizure' in
a42U.S.C.§1983 malicious prosecution action for violation of the Fourth Amendment." DiBella,
407 F.3d at 603; see also Robinson, 378 F. Supp. 2d at 544 (E.D. Pa. 2005) (same).
Third, any penalties or fines imposed after Plaintiff was convicted at his first trial, including
the license suspension, DWI course, and travel restrictions, cannot provide the basis for his
malicious prosecution claim. Plaintiff argues that any penalties he suffered following his first
conviction in municipal court and pending his appeal in the Law Division are relevant to his
malicious prosecution claim because the Law Division proceeding is a "continuation of the
municipal trial." (Pl. Opp. at 16. (citing State v. Robertson, 155 A.3d 571, 576 (2017))). Plaintiff
is correct that DWI cases are tried in municipal court, which has jurisdiction over motor vehicle
14
offenses and traffic laws, and that, upon conviction, a defendant may appeal to the Law Division,
where the defendant is entitled to a de novo trial. See Robertson, 155 A.3d at 576. The Law
Division makes its own findings of fact and conclusions of law but defers to the municipal court's
credibility findings, giving "due, although not necessarily controlling, regard" to same. Id.
(citations omitted). At the de novo trial, the defendant is presumed innocent, and the State again
bears the burden of proof. Id. According to Plaintiff, because a municipal court defendant retains
the presumption of innocence pending appeal to the Law Division, the Law Division proceeding
is merely a continuation of the municipal proceedings making any punishment imposed by the
municipal court as part of a conviction, in reality, apretrial deprivation of liberty. (Pl. Opp. at 16.
(citing Robertson, 155 A.3d at 576)). This contention is specious.
Robertson does not stand for the proposition that de novo appeals of municipal court
convictions are a continuation of municipal trials or that sentences imposed as a result of those
convictions are cognizable seizures for purposes of a malicious prosecution claim. In Robertson,
the New Jersey Supreme Court considered the appropriate standards for when a court should stay
the suspension of a driver's license imposed by a municipal court pursuant to a DWI conviction
while the case was pending appeal to the Law Division. Id. at 577. As Defendants point out in their
Reply brief, nothing in Robertson suggests that a municipal court conviction is vacated pending
appeal to the Law Division; rather, in considering whether to "stay a sentence," the Robertson
court made clear that the underlying conviction upon which the sentence is based stands while the
appeal is pending. (Def. Reply at 8, 10.); see Robertston, 155 A.3d. at 577.
Absent any caselaw to the contrary, the Court finds that the restrictions imposed on
Plaintiff's liberty after his conviction in municipal court cannot provide a basis for his malicious
Plaintiff also cites a number of cases that purportedly stand for the proposition that "malicious prosecution
applies to initiation and continuation, including re-trial." (Pl. Opp. at 25.) Plaintiff cites Geness v. Cox, 902
15
prosecution claim. See Donahue, 280 F.3d at 380 (post-conviction restrictions cannot provide a
basis for a malicious prosecution claim); Laufgas, 206 F. App'x at 198 (same); DiBella, 407 F.3d
at 603 (same). Indeed, the Third Circuit in Torres rejected a similar request. 163 F. 3 d at 174-75.
The Torres plaintiff argued that post-conviction detention, suffered while a motion for a new trial
was pending, was a Fourth Amendment seizure for purposes of a malicious prosecution claim. Id.
at 174. The Third Circuit disagreed. Id. ("At most, there may be some circumstances during pretrial detention that implicate Fourth Amendment rights ... we conclude that post-conviction
incarceration cannot be a seizure within the meaning of the Fourth Amendment. . . ."). Likewise,
the deprivations of liberty experienced by Plaintiff after his first trial while his appeal and motion
for new trial were pending and after his second trial while his appeal to the Law Division was
pending are not Fourth Amendment seizures.
The Court acknowledges that the procedural posture of a de novo trial in the Law Division
following a conviction in municipal court is unusual because the State continues to bear the burden
of proof and the defendant is presumed innocent. However, if this Court were to accept Plaintiffs
expansive interpretation, virtually every defendant who appealed his municipal court conviction
F.3d 344 (3d Cir. 2018). This case says nothing about the continuation of trial or re-trial of a criminal
defendant, nor does it consider the deprivation of liberty element of a malicious prosecution claim. See
generally id. The pincite provided by Plaintiff is to a discussion of whether a criminal defendant's cognitive
disabilities render a confession involuntary and whether a confession provided a basis for probable cause.
Id. at 359. Plaintiff also cites LoBiondo v. Schwartz, 970 A.2d 1007, 1022 (2009). While the LoBiondo
Court does state that malicious prosecution "provides a remedy for harm caused by the institution or
continuation of a criminal action that is baseless," the case arose in a different context: it involved a
malicious use of process claim, which is the civil counterpart to malicious prosecution, filed in response to
a Strategic Lawsuits Against Public Participation ("SLAPP") suit, and a malicious prosecution
counterclaim. See generally id. It did not involve a criminal proceeding in municipal court and provides no
support for Plaintiffs argument that a sentence imposed pursuant to a municipal court conviction
constitutes the kind of pre-trial deprivation of liberty actionable under a malicious prosecution claim.
Plaintiff fairs no better with his citation to Mamiel v. City ofJoliet, 580 U.S. 357, 367 (2017). In Manuel,
the Supreme Court held that a criminal defendant's "pretnal detention" was cognizable under the Fourth
Amendment. Id. at 367-68. The case lends no support to Plaintiff's argument that his post-conviction
sentence is also cognizable under the Fourth Amendment.
16
to the Law Division resulting in an acquittal would then have a viable malicious prosecution claim
based on post-conviction penalties. Such a result would be incongruous with the fact that malicious
prosecution claims are disfavored in New Jersey. Land v. Helmer, 843 F. Supp. 2d 547,550 (D.N.J.
2012) ("Malicious prosecution is an avowedly disfavored cause of action." (citing Stolisnki v.
Pennypacker, 772 F. Supp. 2d 626 (D.N.J. 2011) (cataloging the numerous expressions of
disfavor))); see also Smart v. Cnty. of Gloucester, No. 20-12408, 2023 WL 4491400, at *22 (D.N.J.
July 12, 2023) (citing Penwag Prop. Co. v. Landau, 388 A.2d 1265, 1266 (1978) ("New Jersey
courts disfavor malicious prosecution claims because the courts do not want to deter reporting
possible crimes or righting civil injuries.")). Accordingly, any fines or penalties imposed as a result
of Plaintiff's municipal court convictions do not provide a basis to prove the requisite deprivation
of liberty element for his malicious prosecution claim.
Thus, the Court must determine whether Plaintiff suffered a Fourth Amendment seizure
after he was charged but before he was tried in municipal court. As noted above, pretrial custody
and some onerous types of pretrial, non-custodial restrictions are cognizable forms of detention
for a malicious prosecution claim. DiBella, 407 F.3d at 603. Under the facts of this case, there are
two events that Plaintiff appears to assert meet these criteria: (1) any time that Plaintiff remained
in custody after his Complaint-Summons was issued but before he was released; and (2) the fact
6 Other Circuit Courts have also found that "standard fare . . . run-of-the-mill conditions ofpretrial release"
do not constitute a Fourth Amendment seizure because they "do not fit comfortably within the recognized
parameters of the term seizure. Harrington v. City ofNashua, 610 F.3d 24, 32 (1st Cir. 2010) (conditions
that require a plaintiff to attend court proceedings, notify the court of any change in address, refrain from
committing crimes and forbear consuming controlled substances or excessive alcohol do not constitute a
seizure (cleaned up); see also Kingslandv. City of Miami, 382 F.3d 1220,1236 (llth Cir. 2004), abrogated
on other grounds by Williams v. Aguirre, 965 F.3d 1147, 1159 (llth Cir. 2020) (no circuits "have been
willing to conclude that normal conditions ofpretrial release constitute a 'continuing seizure' barring some
significant, ongoing deprivation of liberty"),
17
that his vehicle remained impounded after his Complaint-Summons was issued but before he was
able to retrieve it.
ii. Time in Custody Following Arrest
Confusingly, without corroboration, and contrary to standard protocol in every New Jersey
municipal police department, Plaintiff alleges he was detained "at least one hour after the initiation
of charges against him" and that the "legal process" in this case "was written [] during or before
[Plaintiffs] detention."7 (SAG f|65, 65 n.l5.) According to the Holmdel Township Police
Department Arrest Report, Plaintiffs "booking" occurred at 3:48 a.m. (Pl. Opp., Ex. G at 2.)8
Plaintiff cites this report for the proposition that "based on the text of the 'booking checks' for
[Plaintiff] ... he was charged at 3:48 a.m." (Pl. Opp. at 34 (emphasis in original).) Thus, according
to Plaintiff, the legal process began at 3:48 a.m. (Id.) Plaintiff further argues that Defendants may
Pursuant to N.J. Ct. R. 7:2-1, summonses are generally issued on Complaint-Summons or ComplaintWarrant forms. The summons in this case was a Complaint-Summons. {See Def. MTD, Ex. I.) The standard
protocol is that "[a] law enforcement officer making a custodial arrest without a Complaint-Warrant [] shall
take the defendant to the police station where a complaint shall be immediately prepared." N.J. Ct. R. 7:3l(c)(l). Once a Complaint-Summons has been prepared, or a judicial officer has determined that a summons
shall issue, "the summons shall be served and the defendant shall be released after completion of post-arrest
identification procedures required by law . ..." N.J. Ct. R. 7:3-l(c)(3).
8 Arrest reports are properly before this Court on a motion to dismiss as matters of public record. See Harden
v. City ofMUlville, No. 17-5127, 2018 WL 2113268, at *3 (D.N.J. May 8, 2018) (considering an arrest
report attached to defendants' motion to dismiss); Kelly v. City of Newark, No. 17-0498,2018 WL 1378727,
at *7 (D.N.J. Mar. 16, 2018) (considering an arrest report attached to plaintiffs' opposition to a motion to
dismiss). Moreover, the basis of Plaintiff s malicious prosecution claim is that he was detained after legal
process was initiated against him. While Plaintiff did not attach the arrest report to the Second Amended
Complaint, the Court finds that the report was integral to Plaintiff's claim. See Buck, 452 F.3d at 260.
Plaintiff concedes this point in his Brief in Opposition wherein he contends that his allegation that "he was
charged . . . and held at least one hour after charges ... .is based on the text" of this arrest report. (Pl. Opp.
at 34). "[T]he justification for the integral documents exception is that it is not unfair to hold a plaintiff
accountable for the contents of documents it must have used in framing its complaint, nor should a plaintiff
be able to evade accountability for such documents simply by not attaching them to his complaint." Schmidt
v. Skolas, 770 P.3d 241, 250 (3d Cir. 2014); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) ("The rationale underlying this exception is that the primary problem raised by
looking to documents outside the complaint - lack of notice to the plaintiff - is dissipated where the plaintiff
has actual notice and has relied upon these documents in framing the complaint." (cleaned up)). Such is the
case here where Plaintiff admits that the arrest report was used in framing his Second Amended Complaint.
18
not, at the motion to dismiss stage, litigate whether Plaintiff was charged at this time. (Id.) The
Court is not persuaded. While the Court must accept Plaintiff's factual allegations as true, the
Court is not bound by Plaintiffs legal arguments at the motion to dismiss stage. See Twombly, 550
U.S. at 570 (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion
couched as a factual allegation" (citation omitted)).
Whether or not a routine booking procedure constitutes the initiation of legal process is not
a factual allegation; it is a legal conclusion. And indeed, an incorrect one. The commencement of
the booking process is not the initiation of a legal proceeding. The charging document in this case
was a "Uniform Traffic Ticket," also called a "Complaint-Summons." (See Def. MTD, Ex. I
("Complaint-Summons," "UTT"))9. The legal process was initiated not when Plaintiff was booked
at the Holmdel police station, but rather when the summons was issued to Plaintiff. See State v.
Fisher, 852 A.2d 1074, 1077 (2004) (explaining that a Uniform Traffic Ticket or "ComplaintSummons" is used to charge a defendant with a DWI); see also N.J. Ct. R. 7:2-l(b)(l) (explaining
that the Uniform Traffic Ticket serves "as the complaint, summons or other process" for all traffic
related offenses). The time at which the Complaint-Summons was signed and thus Plaintiff was
charged is not clear from the documents before the Court; there is no discemable timestamp on the
summons itself. (See Def. MTD, Ex. I.) What is clear is that Plaintiff was released on his own
The Court may consider the Complaint-Summons as a matter or public record and an indisputably
authentic document attached to Defendants' Motion to Dismiss upon which Plaintiff's malicious
prosecution claim is based. See Zedonis v. Lynch, 233 F. Supp. 3d 417, 422 (M.D. Pa. 2017) (criminal
complaint is an indisputably authentic document attached to motion to dismiss); Boy den v. Twp. of Upper
Darby, 5 P.Supp.Sd 731, 734 (E.D. Pa. 2014) (same). Moreover, Plaintiff repeatedly references the
summons in the Second Amended Complaint, and it is likewise integral to Plaintiff's claim. See Buck, 452
F.3dat260.
19
recognizance to his son, SaifElfar, at 4:53 a.m. (Def. MTD, Ex. J.)10 It is virtually certain that
Plaintiff was charged sometime after he was booked at 3:48 a.m. and before or at the time he was
picked up by his son at 4:48 a.m. The Court finds that this de minimis period of detention is not a
"seizure significant enough to constitute a Fourth Amendment violation." DiBella, 407 F. 3 d at
603; see also Dinoia, 2015 WL 6739114, at *3 (plaintiff who was arrested and detained for one
(1) hour and five (5) minutes before being released on his own recognizance was not seized);
Moreno-Medina v. Toledo, 458 F. App'x 4, 5-8 (1st Cir. 2012) (plaintiff who was detained for
four (4) or five (5) hours before being required to post bond was not seized).
This conclusion is bolstered by the Third Circuit's opinion in Penberth v. Krajnak. 347 F.
App'x 827, 829 (3d Cir. 2009). In Penberth, the district court determined that the plaintiff did not
experience a deprivation of liberty sufficient for a malicious prosecution claim. Penberth v.
Krajnak, No. 06-1023, 2008 WL 509174, at *19 (M.D. Pa. Feb. 21, 2008), aff'd, 347 F. App'x
827 (3d Cir. 2009). The Penberth plaintiff was charged with theft by unlawful taking and theft
from a motor vehicle. Id. at * 13. The plaintiff read in the newspaper that charges had been filed
against him and opted to voluntarily surrender. Id. The plaintiff reported to the office of the District
Justice where he remained for approximately thirty-five (35) to forty (40) minutes before he was
released. Id. at * 8, * 13. The Third Circuit upheld the district court's determination that there was
no deprivation of liberty, pointing out that the plaintiff was detained after charges had been filed
against him for only thirty-five (35) to forty (40) minutes, did not have to post bail or communicate
10 This information is reflected in the Computer-Aided Dispatch ("CAD") Report, which is also a matter of
public record properly before the Court. See Home v. Crisostomo, No. 06-3430, 2007 WL 2123701, at *4
(D.N.J. July 19, 2007) (police department investigation reports are public records).
20
with pretrial services, and had no travel or geographic restraints placed on him. Penberth, 347 F.
App'x at 829.
According to the public record documents properly before the Court, Plaintiff was, if
anything, detained for a similar amount of time after charges were filed against him as the Penberth
plaintiff. Plaintiff again seems to be asking the Court to adopt an interpretation of the deprivation
of liberty requirement that is too expansive—that any amount of time that Plaintiff remained at the
Holmdel police station before his son could arrive to pick him up is cognizable for a malicious
prosecution claim. The Court finds that such a result would conflict with Third Circuit guidance
that malicious prosecution cases are reserved for "seizure[s] significant enough to constitute a
Fourth Amendment violation." DiBella, 407 F.3d at 603 (emphasis added).
Moreover, Plaintiff's Second Amended Complaint fails to set forth any allegations that
Plaintiff was detained pursuant to the Complaint-Summons and therefore there are no allegations
that Plaintiff was seized pursuant to legal process. The Supreme Court of New Jersey has explained
that Complaint-Summonses are not utilized for defendants who require pretrial detention—
defendants "are always released" pursuant to Complaint-Summonses and directed to appear in
court on a specific date. Simmons v. Mercado, 252 A.3d 995, 999 (2021). No charging document
or judicial officer required Plaintiff to post bail in order to be released; he was released on his own
recognizance, was subject to no pretrial travel restrictions, and was not required to report to pretrial
services. Courts in this Circuit have found that such circumstances do not constitute cognizable
seizures for malicious prosecution claims. See Wiltz v. Middlesex Cnty. Off. of Prosecutor, 249 F.
App'x 944, 949 (3d Cir. 2007) (upholding a district court's dismissal of a malicious prosecution
claim on the basis that a plaintiff who was arrested but not incarcerated and not required to post
bond, maintain contact with pretrial services, or refrain from travel was not seized); Walker v.
21
Heller, No. 15-580, 2017 WL 4786557, at *9 (D.N.J. Oct. 24, 2017) (plaintiff who was arrested,
issued a summons, and was not required to post bail or report to pretrial services was not seized);
Dinoia, 2015 WL 6739114, at *3 (plaintiff who was arrested, detained for one (1) hour and five
(5) minutes, issued a summons, and released on his own recognizance was not seized); Roberts,
72 F. Supp. 3d at 582 (plaintiffs who were charged, arraigned, released on their own recognizance,
and not required to report to pretrial services were not seized even though their pretrial freedom to
travel was subject to approval); see also M^oreno-Medina, 458 F. App'x at 5-8 (a plaintiff who
was detained for four (4) or five (5) hours, booked, and required to post a $10,0000 bond was not
seized because no detention occurred after he posted bond even though two of his vehicles were
seized along with all of the items in them).
Hi. Vehicle Impoundment
The Court also notes that the fact that Plaintiff's vehicle was impounded when he was
arrested, and remained impounded until he could pick it up, does not amount to a Fourth
Amendment seizure consistent with the deprivation of liberty cognizable for a malicious
prosecution claim. Nor is the fact that Plaintiff had to pay the towing fees associated with the
impoundment. The Third Circuit has held that "legal fees, court costs, and interminable
inconvenience[s]" are "insufficient to establish that [the plaintiff] was the victim of a malicious
prosecution under the Fourth Amendment." Mann v. Brenner, 375 F. App'x 232, 237 (3d Cir.
2010) (citing DiBella, 407 F.3d at 603); see also Moreno-Medina, 458 F. App'x at 5-8 (concluding
that a seizure did not occur even though plaintiff was arrested, required to post bond, and two of
his vehicles were seized along with all ofthetr contents).
In this case, Plaintiff has failed to allege that he was detained pursuant to the initiation of
criminal charges, forced to post bond, subjected to travel restrictions, required to report to pretrial
22
services, or otherwise burdened with significant deprivation. The fact that it may have taken a de
minimis amount of time for Plaintiff to be released after his Complaint-Summons was signed and
that he had to retrieve his vehicle are "standard fare." See Harrington, 610 F.3d at 32. The Court
notes that part, or perhaps even most, of Plaintiffs hour-long stay in the Holmdel police station
may well have been necessitated by virtue of the fact that Plaintiffs son was contacted to pick up
Plaintiff between 4:00 and 5:00 in the morning.
Because Plaintiff's failure to allege a deprivation of liberty consistent with a Fourth
Amendment seizure is fatal to his malicious prosecution claims, the Court need not consider
Defendants' other bases for dismissal of these claims. See Kerstetter v. Girard Borough, No. 2077, 2021 WL 37626, at *5 (W.D. Pa. Jan. 5, 2021) (dismissing malicious prosecution claim based
on failure to allege a deprivation of liberty and declining to address remaining arguments); Trabal
v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 248 (3d Cir. 2001) (failure to prove any four
of the elements of a New Jersey malicious prosecution "denies the plaintiff a cause of action").
Accordingly, Defendants Motion to Dismiss as to Plaintiff's constitutional malicious prosecution
claims is GRANTED.
B. MONELL CLAIM
Having determined that Plaintiff's malicious prosecution claim fails, the Court now turns
to Plaintiff's claim for municipal liability pursuant to Section 1983 and the NJCRA against
Holmdel. A plaintiff may not hold a municipality liable for the constitutional violations of its police
officers based on the theory of respondeat superior. See Monell v. Dept. of Social Services, 436
U.S. 658, 691 (1978). To establish municipal liability under Mon^//, a plaintiff must instead prove
"the existence of a policy or custom that has resulted in a constitutional violation." Groman v.
u The Court reiterates that any post-conviction travel restrictions imposed as part of Plaintiff s municipal
court sentence may not be considered in a malicious prosecution analysis.
23
Township ofManalapan, 47 F.3d 628, 637 (3d Cir. 1995) (citing Monell, 436 U.S. at 694-95). A
government policy or custom can be established in two ways. First, policy can be made "when a
decisionmaker possessing final authority to establish a municipal policy with respect to the action
issues an official proclamation, policy, or edict." McTernan v. City of York, 564 F.3d 636, 658 (3d
Cir. 2009) (cleaned up). Second, a custom is established when, though not authorized by law,
practices of state officials are "so permanently and well-settled as to virtually constitute law." Id.
Even if a municipality's policy or custom is "not unconstitutional itself," Monell liability
may still be established "when the policy or custom ... is the 'moving force' behind the
constitutional tort of one of [the municipality's] employees." Colbum v. Upper Darby Twp.,
946 K2d 1017, 1027 (3d Cir. 1991) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). To
establish Monell liability this way, a plaintiff must "demonstrate that the municipal action was
taken with 'deliberate indifference' as to its known or obvious consequences." Bd. of Cnty.
Comm'rs ofBryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997) (citing City ofCanton, Ohio v.
Harris, 489 U.S. 378, 388 (1989)). '"Deliberate indifference' is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of his action."
Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Bryan Cnty., 520 U.S. at 410). Generally,
to make out a deliberate indifference claim, a plaintiff needs to point to a pattern of underlying
constitutional violations. Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004).
Although possible, "proving deliberate indifference in the absence of such a pattern is a difficult
task." Id.
To plead a failure-to-train claim, a plaintiff must ordinarily allege a "pattern of similar
constitutional violations by untrained employees to demonstrate deliberate indifference." Thomas
v. Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014) (cleaned up). Deliberate indifference
24
occurs if (1) "municipal supervisors had contemporaneous knowledge of the offending incident or
of a 'prior pattern of similar incidents,'" and (2) "the supervisors' action or inaction somehow
communicated approval of the offending behavior." Tobin v. Badamo, 78 F. App'x 217, 219 (3d
Cir. 2003) (quoting Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998)). An allegation
of failure to train can be the basis for municipal liability, but these arise in "limited" circumstances
because "[i]n virtually every instance where a person has had his or her constitutional rights
violated by a city employee, [said] plaintiff will be able to point to something the city 'could have
done' to prevent the unfortunate incident." City ofCanton v. Harris, 489 U.S. 378, 387, 392 (1989).
A single constitutional violation can only provide the basis for a failure-to-train claim when "the
need for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights" that inaction amounts to deliberate indifference. Christopher v.
Nestlerode, 240 Fed. Appx. 481, 489 (3d Cir. 2007). Likewise, "[a] municipality may be liable for
its failure to supervise only if it reflects a policy of deliberate indifference to constitutional rights."
Jewell v. Ridley Twp., 497 F. App'x 182,186 (3d Cir. 2012) (citing Montgomery, 159 F.3d at 126-
27).
For failure to train and supervise claims, a plaintiff must demonstrate "both
contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar
incidents and circumstances under which the supervisor's actions or inaction could be found to
have communicated a message of approval to the offending subordinate." Montgomery, 159 F.3d
at 127. Constructive knowledge or a showing that a municipality "should have known" about the
pattern of constitutional misconduct may be sufficient. Forrest v. Parry, 930 F.3d 93, 115 (3d Cir.
2019). Such constructive knowledge "may be evidenced by the fact that the practices have been
so widespread or flagrant that in the proper exercise of [their] official responsibilities the
25
[municipal policymakers] should have known of them." Hernandez v. Borough ofPalisades Park
Police Dep't, 58 P. App'x 909, 913 (3d Cir. 2003).
In support of his Monell claim, Plaintiff alleges that Holmdel has a pattern or practice of
failing to review MVRs. (SAG ^ 48; see also Pl. Opp. at 22-23.) Plaintiff contends that, because
Sasso and Menosky muted the MVR in this case in violation of the MVR policy and because their
violation was not caught, it follows that department supervisors either do not review MVRs or
review MVRs and ignore violations of the policy. (SAG ^ 48.) Plaintiff also alleges that Plaintiffs
own review of twenty-eight (28) MVRs secured through a common law records request shows
apparent improper muting of MVRs in "several" instances, although Plaintiff fails to provide a
specific number of the alleged self-described "improper" mutings. (Id. ^50-51.) Furthermore,
Plaintiff alleges that the fact that Menosky was repeatedly recognized for his volume of DWI
arrests should have caused the Holmdel Police Department to review his MVRs. (Id. ^52.)
Plaintiff also alleges that Holmdel has no adequate written training or guidance on the substantial
diminution standard for DWIs based on marijuana consumption, the consent-to-search doctrine,
and the plain view doctrine. This lack of training resulted in officers' confusion and conflation of
these doctrines. (Id. ^ 48, 62.)
Defendants argue that Plaintiffs' Monell claim hinges solely on the fact that Sasso and
Menosky muted the MVR for fourteen (14) seconds. (Def. MTD at 41.) Defendants contend that
Plaintiffs Monell claim fails because Holmdel's MVR policy permits officers to mute the
microphone and that muting the MVR does not constitute deleting or obscuring evidence relating
to Plaintiffs traffic stop; thus, muting the MVR is not a constitutional violation. (M) According
to Defendants, because the Court should find that Defendants did not violate the Fourth
Amendment through Plaintiffs malicious prosecution claim, and because the MVR policy allows
26
MVRs to be muted, there is no viable predicate upon which to base Plaintiffs claim for municipal
liability. (Id.)
Defendants are correct that because the Court has found at this stage that Plaintiff has failed
to allege a Fourth Amendment violation based on malicious prosecution, Plaintiff's malicious
prosecution claim cannot serve as the basis for his Monell claim. Municipal liability under Section
1983 requires an underlying constitutional violation. See Monell, 436 U.S. at 690-91. "[I]f there
is no violation in the first place, there can be no derivative municipal claim." Mulholland v. Gov't
Cty. ofBerks, Pa., 706 F.3d 227, 238 n. 15 (3d Cir. 2013) (citing Los Angeles v. Heller, 475 U.S.
796, 799 (1986)); see also Rodriguez v. Panarello, 119 F. Supp. 3d 331, 343 (E.D. Pa. 2015)
("Because I found there was no deprivation of Plaintiffs constitutional rights, there can be no
municipal liability."). Thus, the Court must determine whether Plaintiff has otherwise sufficiently
pled a claim for municipal liability.
Plaintiff appears to be alleging a failure-to-supervise claim pertaining to the muting of
MVRs—namely, that Holmdel fails to supervise its police officers by failing to review MVRs to
determine whether improper muting is occurring. Plaintiff alleges that Holmdel should have
reviewed the MVRs based on Menosky's volume of DWI arrests and because Plaintiffs own
review of twenty-eight MVRs that he selected as likely to show improper muting showed apparent
muting in "several" but, again, unquantified instances. Even presuming that muting MVRs under
the circumstances described in this case violated Plaintiffs constitutional rights, Plaintiff has not
adequately plead municipal liability based on this violation.
Plaintiff does not allege that Holmdel had knowledge of a prior pattern of similar
constitutional violations wherein Holmdel's lack of supervision communicated a message of
approval of this practice. Plaintiff appears to be alleging that Holmdel should have hiown there
27
was a pattern of constitutional violations based on improper muting. There is nothing nefarious
about the fact that Menosky secured a high volume ofDWI arrests such that it would put Holmdel
on notice that he was committing constitutional violations. Nor does the fact that Plaintiff
selectively identified a discrete number of instances wherein, based on Plaintiffs own assessment,
MVRs were improperly muted demonstrate the kind of widespread or flagrant practices necessary
to evidence constructive knowledge for a failure-to-supendse claim. Plaintiff's allegations fail at
this stage to show that constitutional violations pertaining to the use of MVRs were so rampant
among Holmdel police officers to meet the stringent deliberate indifference standard.
Plaintiff's failure-to-train claims pertaining to the probable cause standard for marijuana
DWIs, the consent-to-search doctrine, and the plain view doctrine fair no better. Again assuming
arguendo that Sasso and Menosky violated Plaintiffs constitutional rights by (1) arresting him for
a marijuana DWI even though there was no evidence of substantial diminution of Plaintiff s mental
faculties or physical capabilities, (2) failing to properly seek consent to search, and (3) violating
the plain view doctrine, these claims do not form a basis for municipal liability. Plaintiff does not
allege that Holmdel had knowledge of the offending incident nor does Plaintiff allege a prior
pattern of similar incidents or constitutional misconduct. Rather, these claims appear to be based
solely on the subject single incident. As noted above, a single incident can provide the basis for
municipal liability in cases where the need for more or different training is so obvious and so likely
to result in a constitutional violation, that the municipality's inaction amounts to deliberate
indifference. Based on the facts alleged, the Court finds this is not such an obvious case. Indeed,
two separate municipal court judges found no constitutional issue with Sasso or Menosky's
conduct before the Law Division determined they had violated Plaintiff's constitutional rights
during the traffic stop at issue. The Court finds that Holmdel cannot be said to have been
28
deliberately indifferent to Plaintiff's constitutional rights based on this incident alone.
Accordingly, Defendants Motion to Dismiss as to Plaintiffs municipal liability claim is
GRANTED.
C. COMMON LAW MALICIOUS PROSECUTION
Plaintiffs remaining claim is for malicious prosecution under New Jersey common law.
To adjudicate a case, a federal court must have subject matter jurisdiction based on either federal
question or diversity. 28 U.S.C. §§ 1331, 1332; see also Rockefeller v. Comcast Corp., 424 F.
App'x 82, 83 (3d Cir. 2011).12 Here, the Court exercised federal question jurisdiction based on
Plaintiffs' claims for relief under the United States Constitution. See Rockefeller, 424 F. App'x at
83. While the Court has supplemental jurisdiction over Plaintiffs common law claim under 28
U.S.C. § 1367(a), subsection (c) gives district courts discretion to decline to hear claims over which
they otherwise would have supplemental jurisdiction when "the district court has dismissed all
claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "The general approach is
for a district court to ... hold that supplemental jurisdiction should not be exercised where there
is no longer any basis for original jurisdiction." Shaffer v. Twp. of Franklin, No. 09-347, 2010 WL
715349, at *1 (D.N.J. Mar. 1, 2010); see also UnitedMine Workers of Am. v. Gibbs, 383 U.S. 715,
726 (1966) (encouraging federal courts to avoid "[njeedless decisions of state law"); Markowitz v.
Ne. Land Co., 906 F.2d 100, 106 (3d Cir. 1990) ("[T]he rule within this Circuit is that once all
12 While not raised by the parties, district courts have an "ever-present obligation to satisfy themselves of
their subject matter jurisdiction." Liberty Mut, Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir.
1995). A court may thus raise the issue of its own subject matter jurisdiction sua sponte at any time. Id.
29
claims with an independent basis of federal jurisdiction have been dismissed the case no longer
belongs in federal court.")
As discussed above, Defendants' Motion to Dismiss is granted as to Plaintiff's claims
brought under the United States Constitution. These federal claims formed the basis of the Court's
subject-matter jurisdiction to hear this matter, and Plaintiff's common law claim was only properly
before this Court pursuant to its supplemental jurisdiction over related claims. Because no federal
claims remain, pursuant to § 1367(c)(3), this Court declines to exercise supplemental jurisdiction
over the common law claim and accordingly, will not address the parties' arguments as to
Plaintiffs' common law malicious prosecution claim at this stage.
30
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED. Plaintiffs'
claims are DISMISSED without prejudice. Plaintiffs may file an amended pleading that cures the
deficiencies identified in this Opinion within thirty (30) days of the jiate of this Opinion and
^'
accompanying Order. An appropriate Order will follow.
/
.
/
/' / /
ROBERT lApSCH
UNITED STATES DISTRICT JUDGE
Dated: February 5, 2024
31
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