RAPEIKA v. BOROUGH OF FORT LEE

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Plaintiff Civil Action No. 19-6612

v. OPINION

BOROUGH OF FORT LEE, et al.,

Defendants.

John Michael Vazquez, U.S.D.J. .

Plaintiff alleges that police officers improperly kept his personal property following a

search. Defendants are the Borough of Fort Lee (“Fort Lee”), the Fort Lee Police Department,

Keith M. Bendul, T.J. Cullen, Bryan Drumgoole, Officer Hernandez, Corban Cory Horton, Francis

Pantaleo, Eddie Young, Officer Tilton, Gregory Boylan, and Matthew Hintze. Currently pending

is Defendants’ motion to dismiss. D.E. 3. Plaintiff filed a brief in opposition to the motion, D.E.

8, to which Defendants replied, D.E. 9. The Court reviewed the submissions made in support and

opposition to the motion and considered the motion without oral argument pursuant to Fed. R. Civ.

P. 78(b) and L. Civ. R. 78.1(b).! For the reasons that follow, Defendants’ motion is GRANTED

in part and DENIED in part.

' Defendants’ brief in support of their motion to dismiss, D.E. 3-2, will be referred to as “Def. Br.”;

Plaintiff's memorandum in opposition, D.E. 8, will be referred to as “PIf Opp.”; and Defendants’

reply brief, D.E. 9, will be referred to as “Def. Reply”.

1. INTRODUCTION?

Plaintiff alleges that Bendul, Cullen, Drumgoole, Hernandez, Horton, Pantaleo, Young,

Tilton, Boylan and Hintze (the “Individual Defendants”) conspired to steal Plaintiff's personal

property. The Individual Defendants, who are all members of the Fort Lee Police Department,

purportedly knew that Plaintiff owned guns, traded Bitcoin and precious metals, owned expensive

watches, and had cash and other valuable items in his apartment. Compl. {J 27-36. Plaintiff

contends that the Individual Defendants arranged for a confidential informant to attempt to

purchase marijuana from Plaintiff, and that Plaintiff sold the informant marijuana on two

occasions, /d, 44-52. Based on these two transactions, the Individual Defendants obtained a

search warrant for Plaintiffs apartment, and the following day, they obtained a second search

warrant for Plaintiff's garage. Jd. 954, 70. Plaintiff alleges that the initial search warrant for his

apartment was improperly obtained. /d. fj 52-53, 111-41.

In executing the search warrant of Plaintiff's apartment, Hintze, Cullen, Horton,

Drumgoole, Young, and Boylan found handguns, cash, rare coins, gold bullion, and three watches.

Id. 459. Plaintiff alleges that the Individual Defendants failed to properly inventory all the items

seized and have yet to return property even after Plaintiff's demands. Specifically, Plaintiff alleges

that inventoried property was returned, with the exception of $14,000 over which forfeiture

proceedings were instituted and are pending. /d, J§ 61, 78-79. Yet, Plaintiff continues that while

approximately $300,000 worth of property was returned, over $400,000 worth of property was

illegally retained. Jd. ¥85. As to the $14,000, Plaintiff asserts that he actually had over $40,000

in his apartment, but only $14,000 was inventoried. /d. 62. Among other items, Plaintiff alleges

The facts are derived from Plaintiff's Complaint. D.E. 1. When reviewing a Rule 12(b)(6)

motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

that gold and silver bullion, rare coins, jewelry (including a Rolex and a Techno Marine watch),

and over 1900 bitcoins were improperly taken. Jd. {¥ 68-69.

On May 28, 2014, Plaintiff was indicted on 17 charges in state court. /d. 71-72. On

March 1, 2018, Plaintiff pled guilty to one count of second-degree possession of an assault weapon.

Id, 73-74. The remaining 16 counts of the indictment were subsequently dismissed. Jd. 75.

On April 27, 2018, Plaintiff was sentenced to five years of incarceration; he is currently serving

his sentence. Jd, J] 76-77.

Plaintiff filed the current matter against Defendants on February 22, 2019. D.E. 1. Plaintiff

asserts constitutional claims pursuant to 42 U.S.C. § 1983, state constitutional claims under the

New Jersey Civil Rights Act (“NJCRA”), and three state-law based tort claims for negligence,

conversion and conspiracy. Defendants filed their motion to dismiss on May 30, 2019. D.E. 3.

Il. LEGAL STANDARD

For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual

matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Jd. Further, a plaintiff must “allege

sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”

Connelly v. Lane Const. Corp,, 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of

a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are

legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors,

Ine., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint’s

well-pleaded facts as true.” Fowler, 578 F.3d at 210.

I. ANALYSIS

A. Section 1983 and the New Jersey Civil Rights Act

In Counts One through Three, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and the

NJCRA against all Defendants. Section 1983, in relevant part, provides as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress[.}

42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides

a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-

94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that (1) a person deprived

him of a federal right; and (2) the person who deprived him of that right acted under color of state

or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.

14, 2015).

The NJCRA provides a private cause of action to

[a]ny person who has been deprived of any substantive due process

or equal protection rights, privileges or immunities secured by the

Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those substantive rights,

privileges or immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person

acting under color of law, may bring a civil action for damages and

for injunctive or other appropriate relief.

N.J.S.A. 10:6-2. The “NJCRA was modeled after § 1983, [and so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of § 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez v. Fuentes, No.

15-6939, 2016 WL 4107689, at *5 (D.N.J. July 29, 2016) (internal quotations and citation

omitted). Therefore, the Court considers Plaintiff's § 1983 and NJCRA claims together.

Here, Plaintiff alleges that Defendants violated his Fourth and Fourteenth Amendment

rights. Moreover, Plaintiff's § 1983 allegations can be broken into two general categories; claims

against Fort Lee and the Supervisory Defendants (Fort Lee, the Fort Lee Police Department,

Bendul, and Hintze) and claims against the Individual Officer Defendants (Cullen, Drumgoole,

Hernandez, Horton, Pantaleo, Young, Tilton and Boylan).

1. CLAIMS AGAINST FORT LEE? AND THE

SUPERVISORY DEFENDANTS

Defendants argue that Plaintiff fails to state a Monell liability claim as to Fort Lee and the

Supervisory Defendants in their official capacities.1 Def. Br. at 5-7. A municipality cannot be

liable under Section 1983 for the acts of its employees on the basis of respondeat superior. Thomas

v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (citing Monel/ v. Dep't of Soc. Servs. of

436 U.S, 658, 690-91 (1978)). Rather, to hold a municipality liable, a plaintiff must

demonstrate that the violation of rights was caused by a municipal policy or custom. fd. “A

plaintiff may show the existence of a policy when a decision-maker with final authority issues an

official proclamation, policy, or edict.” Noble v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J.

3 Defendants argue that Plaintiffs claims against the Fort Lee Police Department must be

dismissed because the Fort Lee Police Department is an improper Defendant. Def. Br. at 22.

Plaintiff agrees to dismiss the Fort Lee Police Department as a Defendant in this matter because it

is not a separate entity from Fort Lee. Plf. Opp. at 2. Accordingly, Defendants’ motion to dismiss

is granted as to the Fort Lee Police Department.

4 In Monell v. Dep't Soc. Servs. of N.Y.C. “the Supreme Court established that municipalities and

other government entities were ‘persons’ subject to liability under 42 U.S.C. § 1983.” Noble v.

City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. 2015) (citing Monell, 436 U.S. 658, 690-92

(1978)).

2015) (internal quotations and citations omitted). “[A] custom may be established by showing that

a given course of conduct, although not specifically endorsed or authorized by law, is so well-

settled and permanent as virtually to constitute law.” Jd. (internal quotations and citations

omitted). Here, Plaintiff does not contend that a specific policy caused his injuries, and instead

alleges that Fort Lee and the Supervisory Defendants failed to enact appropriate policies. Compl.

{| 148, 150. Thus, it appears that Plaintiff is attempting to assert a Monell claim, at least in part,

based on customs of the Fort Lee Police Department. But outside of conclusory allegations,

Plaintiff fails to plead facts demonstrating that Fort Lee or the Supervisory Defendants were aware

of a custom of improperly inventorying and returning seized property, or that there was a pattern

of similar incidents that could amount to a custom, Asa result, Plaintiff fails to sufficiently allege

that a custom existed.

Plaintiff also alleges that Fort Lee and the Supervisory Defendants failed to train, supervise,

and discipline officers. /d. {| 155-56. The Third Circuit recently clarified that a Monel! claim

may also be premised on a municipality’s failure to train, supervise, and discipline. To plead such

a claim, a plaintiff “must demonstrate that a city’s failure to train its employees ‘reflects a

deliberate or conscious choice.” Estate of Roman v. City of Newark, 914 F.3d 789, 798, 800 (3d

Cir. 2019) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir. 2001)). For claims

involving police officers, the alleged failure can only serve as a basis for § 1983 liability where it

“amounts to deliberate indifference to the rights of persons with whom the police come into

contact.” /d. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference

is plausibly pled by showing that “(1) municipal policy makers know that employees will confront

a particular situation, (2) the situation involves a difficult choice or a history of employees

mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of

constitutional rights.” /d. (quoting Doe v. Luzerne County, 660 F.3d 169, 180 (3d Cir. 2011)

(internal brackets omitted)). Here, Plaintiff fails to sufficiently allege that there was a history

within the Fort Lee Police Department of failing to properly inventory property found at crime

scenes or to return such property. Thus, Plaintiff fails to plausibly plead deliberate indifference.°

Plaintiff argues that he need not plead facts demonstrating a long-standing pattern; rather a

single incident may be sufficient to establish deliberate indifference. PIf. Opp. at 20. The Supreme

Court has left open the “rare” possibility, that “in a narrow range of circumstances, a pattern of

similar violations might not be necessary to show deliberate indifference.” Connick v. Thompson,

563 U.S. 51, 63-64 (2011). A single incident may be sufficient if the constitutional violation was

an “obvious consequence” of the lack of training. /d. at 63. Without deciding the issue, the

Supreme Court “posed the hypothetical example of a city that arms its police force with firearms

and deploys the armed officers into the public to capture fleeing felons without training the officers

in the constitutional limitation on the use of deadly force” as a potential example in which a pattern

of past incidents may not be necessary. /d. at 63 (citing Canton, 489 U.S. at 390 n.10 (1989)). In

Connick, however, the Supreme Court determined that the failure to train prosecutors on their

obligations pursuant to Brady “does not fall within the narrow range of Canton’s hypothesized

single-incident hability.” /d. at 64. In reaching this conclusion, the Supreme Court highlighted

the on-going training and professional obligations of attorneys. “In light of this regime of legal

> “Individual defendants who are policymakers may be liable under § 1983 if it is shown that such

defendants, ‘with deliberate indifference to the consequences, established and maintained a policy,

practice or custom which directly caused [the] constitutional harm.’” <4.M. ex rel. J.MLK. □□□

Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford

Area Sch, Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Plaintiff fails to establish that Hintze, the

Individual Officer Defendants’ immediate field supervisor, Compl. 5, 170, had any

policymaking authority. As a result, Plaintiffs failure to supervise, train, and discipline claim is

also dismissed as to Hintze on these grounds.

training and professional responsibility, recurring constitutional violations are not the ‘obvious

consequence’ of failing to provide prosecutors with formal in-house training about how to obey

the law.” /d. (quoting Bd. of Cry. Comm'rs of Bryan County v. Brown, 520 U.S. 397, 409 (1997).

Here, outside of conclusory allegations, Plaintiff fails to allege that the Individual Officer

Defendants’ failure to document, inventory, and return Plaintiff's property was caused by a lack

of training. In addition, Plaintiff fails to establish that Fort Lee police officers will likely face

similar situations as presented here with any frequency. See Thomas, 749 F.3d at 223 (“Liability

in single-incident cases depends on the likelihood that the situation will recur and the predictability

that an officer lacking specific tools to handle that situation will violate citizens’ rights.”). The

Court, therefore, disagrees that the alleged single incident in this case sufficiently pleads deliberate

indifference. Plaintiff's Monell claim is dismissed.

Plaintiff also brings claims against the Supervisory Defendants in their individual

capacities. There are two cognizable theories of supervisory liability for Section 1983 claims.

First, liability may be asserted against policymakers “if it is shown that such defendants, ‘with

deliberate indifference to the consequences, established and maintained a policy, custom, or

practice which directly caused the constitutional harm.”” A.M. ex rel. J.MLK. v. Luzerne Cty.

Juvenile Detention Ctr., 372 F.3d 572, 586 (quoting Stoneking v. Bradford Area Sch. Dist,, 882

F.2d 720, 725 (3d Cir. 1989)): see also Chavarriaga v. N.J. Dept. of Corrs., 806 F.3d 210, 227 (3d

Cir. 2015) (explaining that to establish § 1983 supervisory liability a plaintiff must “identify the

supervisor’s specific acts or omissions demonstrating the supervisor’s deliberate indifference to

the inmate’s risk of injury and must establish a link between the supervisor, the act, and the

injury”). As discussed with respect to the Mone/l claim, Plaintiff fails to sufficiently allege

deliberate indifference as to the Supervisory Defendants.

Section 1983 liability against a supervisor may also exist if the supervisor was personally

involved by either giving personal direction or having actual, contemporaneous knowledge of the

wrongdoing and acquiescing to the violation. Rode v, Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). Plaintiff alleges that Bendul and Hintze were personally involved in the alleged

wrongdoing. Plaintiff alleges that both Bendul and Hintze knew Plaintiff from the pizzeria where

Plaintiff worked and the shooting range, and knew about Plaintiffs guns, Bitcoin and watch

collections, and bouillon investment activities. Compl. 37-38, 41-42. Plaintiff also alleges that

Hintze was involved in the search of Plaintiff's apartment, id. §] 56-59, and knew of the scheme

to not inventory and return all of the property seized, id. 66-67. Finally, Plaintiff pleads that

three of the Individual Officer Defendants who were responsible for directly inventorying the

property were supposed to log the items seized with Hintze. Plaintiff continues that Hintze failed

to ensure that these officers properly inventoried and returned the property to Plaintiff. Jd. {J 81-

83.

As for Bendul, Plaintiff pleads that “Bendul was personally required to review reports,

inventory, photos and evidence involving the raid, as well as to review the photographs taken of

the raid.” Jd. §.97. A “simple review” of these photos would, according to Plaintiff, establish that

Plaintiff's property was not properly inventoried, yet Bendul failed to take any corrective action.

id. 99 98-99. Plaintiff further alleges that after he lodged a formal complaint with the Fort Lee

Police Department for the return of his property, “upon information and belief, Bendul opened an

Internal Affairs investigation.” Jd. §] 87-88. Plaintiff alleges that the investigation was never

resolved and Bendul “refused to acknowledge that there was missing property despite Plaintiff's

complaints.” Jd. 89-90. Plaintiff sufficiently alleges that Bendul and Hintze were personally

involved in the alleged wrongdoing. As a result, the Court will consider the allegations as to

Bendul and Hintze below while addressing the claims asserted against the Individual Officer

Defendants.

2. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

a. Fourth Amendment Violations

The parties focus on the validity of the warrant used to search Plaintiffs apartment and

garage. Defendants argue that there was no constitutional violation because the search warrant

and subsequent seizure were based on probable cause. Def. Br. at 8. Plaintiff counters that

probable cause was lacking. Plf. Opp. at 26.

“The Fourth Amendment prohibits unreasonable searches and seizures.” United States v.

Stabile, 633 F.3d 219, 230 (3d Cir. 2011). A search and seizure is generally reasonable pursuant

to the Fourth Amendment if it is “effectuated with a warrant based on probable cause.” United

States v. Bey, 911 F.3d 139, 144-45 (3d Cir. 2018). A warrant passes Fourth Amendment scrutiny

if it was issued by a neutral and detached magistrate; (2) it was based on a showing of

‘probable cause’ to believe that ‘the evidence sought will aid in a particular apprehension or

conviction for a particular offense,’ and (3) it satisfies the particularity requirements.” United

States v. Tutis, 216 F. Supp. 3d 467, 477 (D.N.J. 2016) (quoting Dalia vy. United States, 441 U.S.

238, 255 (1979)). Probable cause for a search warrant exists if there is “a ‘fair probability’ of

ctiminal activity, based upon the totality of circumstances.” /d. (quoting United States v. Bond,

581 F.3d 128, 139 (3d Cir. 2009)). A reviewing court, however, “must afford great deference to

the probable cause finding of an issuing court,” such that a probable cause finding should “be

upheld so long as the supporting documents provided a substantial basis for the initial probable

cause decision.” Jd.

As pled, there appears to have been probable cause for the search warrant. Plaintiff pleads

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that Defendants suspected or knew that he occasionally smoked marijuana. Compl. § 44. Asa

result, Defendants arranged for a confidential informant to purchase marijuana wax from Plaintiff

on two occasions. /d. {J 45-51. Defendants Horton, Drumgoole, Young, and Cullen observed at

least one of the transactions. Jd. [9 48, 51. The two transactions provided probable cause for the

search warrant. fd. 954, Eye-witness accounts of two drug transactions is more than sufficient to

establish a fair probability of criminal activity.

Plaintiff counters that the search warrant “was improperly obtained and based on false

information.” /d. 54. Specifically, Plaintiff pleads that there is no record to establish that either

sale actually occurred, id. §{ 50, 52, and that the subsequent criminal drug charges were eventually

dropped, id. § 52. Plaintiff, however, never pleads that transactions did not actually occur.

Accordingly, the Court disagrees with Plaintiff's argument.

Plaintiff also pleads that there were defects in the warrant such that the subsequent search

violated his Fourth Amendment rights. /d. 111-41. Specifically, Plaintiff pleads that two search

warrants were issued within ten minutes of each other. One was “free of overt defect” and the

second, which had white-out and a handwritten edit to the time, was not initially provided to

Plaintiff during discovery in the criminal matter. Plaintiff, however, concedes that the first warrant

was “free of overt defect,” id. 4 114, “appeared to be perfectly executed,” id. § 128, and that both

warrants were “purportedly signed by Judge Jerejian,” id. 121. Accordingly, the Complaint fails

to establish that the search was conducted with a defective warrant.® Plaintiff, therefore, fails to

Plaintiff's allegations as to the improper warrant as also implausible. Plaintiff surmises that there

must be a problem with the warrant because on the second warrant, there was white-out over the

time and the time ‘4:20” was handwritten onto the warrant. Plaintiff appears to believe that this

is evidence of a conspiracy because 4:20 “is a street name for marijuana and the address number

for the place to be searched.” Compl. § 130. Plaintiff also speculates that Judge Jerejian did not

actually sign the warrant at 4:20 because the court regularly closes at 4:30 p.m. and when the

warrant was signed, “Winter Storm Hercules was hammering the East Coast.” Jd. 131-32.

11

plead that his Fourth Amendment rights were violated.

b. Failure to Intervene

In Count Two, Plaintiff asserts a § 1983 failure to intervene claim against all Defendants

for their failure to stop other Defendants from improperly inventorying Plaintiff's property.

Compl. 197-207. “A police officer has a duty to take reasonable steps to protect a victim from

another officer’s use of excessive force.” Ewing v. Cumberland County, 152 F. Supp. 3d 269, 309

(D.N.J. 2015). Plaintiff, however, does not allege that any of the Defendants used excessive force

against him. Rather, Plaintiff alleges that Defendants should have intervened to ensure that his

property was correctly inventoried and returned to him. But Plaintiff provides no legal authority

indicating that a failure to intervene claim can exist outside the context of an excessive force claim.

Without such authority, the Court dismisses the failure to intervene claim.

c. Fourteen Amendment Due Process Claim

Plaintiff also pleads that his Fourteenth Amendment due process rights were violated as a

result of Defendants’ failure to inventory personal property seized during the search of his

apartment and to return all of his property. See, e.g., Compl. {J 182-94. Defendants argue that

Plaintiff's Fourteenth Amendment due process claim must be dismissed because it is duplicative

of his Fourth Amendment claims, Def, Br. at 7. But Plaintiff's due process claim is focused on a

separate injury—the improper inventory of his property after the search. Compl. 144. In other

words, even warrants were properly issued, this allegation concerns conduct following the search.

Defendants’ motion, therefore, is denied on these grounds.

Defendants also contend that Plaintiff's due process claim should be dismissed because

Plaintiff provides insufficient allegations to support his claims that the warrant was forged or

created after the search occurred.

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Plaintiff fails to allege that he was deprived due process. Def. Br. at 9. “When law enforcement

agents seize property pursuant to a warrant, due process requires them to take reasonable steps to

give notice that the property has been taken so the owner can pursue available remedies for its

return.” City of West Covina v. Perkins, 525 U.S. 234, 240 (1999); Revell v. Port Auth. of N.Y.,

598 F.3d 128, 139 (3d Cir. 2010) (suggesting that due process claim for wrongful retention

of properly seized personal property may exist to the extent that a plaintiff alleges that post-

deprivation procedures were inadequate). In this instance, Plaintiff alleges that some, but not all,

of his property was inventoried after the seizure, that certain property was returned, and that other

property has not yet been returned despite Plaintiff's demands. Plaintiff's allegations sufficiently

state a claim Fourteenth Amendment due process claim.

Defendants argue that even if a constitutional violation occurred, they cannot be liable

because of the doctrine of qualified immunity. Def. Br. at 11-12. Qualified immunity “shields

government agents from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Thomas v. Independence Township, 463 F.3d 285, 291 (3d Cir. 2006) (quoting Behrens v. Pelletier,

516 U.S, 299, 305 (1996)). Because qualified immunity protects government agents from suit, it

“should be resolved as early as possible.” /d. The inquiry into qualified immunity, however, is

fact intensive. Therefore, it is “generally ill-suited for resolution at the pleadings stage.” Janowski

v. City of North Wildwood, No, 16-4464, 2017 WL 1821078, at *4 (D.N.J. May 5, 2017) (quoting

Batiz vy. Brown, No. 12-581, 2013 WL 1137531, at *7 (D.N.J. Mar. 14, 2013)). “[Q]ualified

immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face

of the complaint.” Thomas, 463 F.3d at 291 (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.

2001)).

13

In determining whether qualified immunity exists, a court must assess whether (1) the facts

alleged by plaintiff show the violation of a constitutional right; and (2) the plaintiff's constitutional

right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Defendants’

sole argument for dismissal on qualified immunity grounds is that no constitutional violation

occurred. But as discussed, certain Individual Defendants allegedly violated Plaintiff's

constitutional rights by failing to properly inventory and return Plaintiff's personal property.

While not raised by the parties, the Court briefly addresses whether the constitutional right

was clearly established at the time of the violation. A right is clearly established if it would “be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,

533 U.S. at 202; see also Gaymon v. Esposito, No. 11-4170, 2013 WL 4446973, at *5 (D.N.J. Aug.

16, 2013) (“[T]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”) (quoting Wilson, 526 U.S. at 615)). “This

inquiry turns on the ‘objective legal reasonableness of the action, assessed in light of the legal rules

that were clearly established at the time it was taken.’” Pearson, 555 U.S. at 244 (quoting Wilson

v. Layne, 526 U.S. 603, 614 (1999)). The obligation to inventory seized property and abide by

post-deprivation procedures for the return of such property was clearly established when the search

and seizure occurred here. Perkins, 525 U.S. at 240; Revell, 598 F.3d at 139. The Individual

Defendants, therefore, are not entitled to qualified immunity as to Plaintiff's due process claim at

this stage.

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d. Section 1983 Conspiracy

In Count One, Plaintiff also pleads a conspiracy to violate his Fourth and Fourteenth

Amendment rights. To state a § 1983 conspiracy, a plaintiff must allege facts showing that

“persons acting under color of state law ‘reached an understanding’ to deprive him of his

constitutional rights,” Jutrowski v, Township of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018).

Defendants contend that Plaintiff's conspiracy claim must be dismissed because Plaintiff fails to

plead an underlying constitutional violation. Def. Br. at 10. As discussed, Plaintiff adequately

pleads a Fourteenth Amendment due process claim. Accordingly, Plaintiff's conspiracy claim is

not dismissed on this ground, See Jutrowski, 904 F.3d at 294 (explaining that with respect to a §

1983 conspiracy, the constitutional violation “include[s], of course, those protected by the Due

Process Clause of the Fourteenth Amendment”).

Defendants also seek to dismiss Plaintiff's conspiracy claim because he fails to provide

factual support for his allegations as to the “understanding” between Defendants. Def. Br. at 30-

31. The Court disagrees. An agreement or meeting of the minds may be established by

circumstantial evidence, including “that the alleged conspirators did or said something to create

an understanding, the approximate time when the agreement was made, the specific parties to the

agreement, the period of the conspiracy, or the object of the conspiracy.” Jutrowski, 904 F.3d at

295. Plaintiff pleads that each Individual Defendant was aware of Plaintiff's Bitcoin and bouillon

investment activities as well as his gun and watch collections. Compl. J{ 18, 37-39, 41 The

Complaint includes sufficient allegations through which the Court may infer that Defendants took

concerted action to violate Plaintiff's constitutional rights. Plaintiff alleges that Horton,

Drumgoole, and Cullen participated in the search and the inventory process. Plaintiff asserts that

“(ajccording to a police report,” Cullen, Drumgoogle, and Horton “were responsible for directly

15

inventorying the property, labeling and logging it[.]” Jd. 981. Plaintiff adds that it is clear that

property is missing when comparing photographs of his apartment during the search and the

inventory log. Jd. 498. Plaintiff also alleges sufficient facts to infer that Bendul was involved in

the conspiracy because he failed to return Plaintiffs property upon demand, and he did not

reprimand or discipline any officers as to the missing items. Defendants’ motion to dismiss the

conspiracy claim, therefore, is denied.’

B. STATE LAW TORT CLAIMS

1. New Jersey Tort Claims Act

Plaintiff’s Complaint also asserts three tort claims pursuant to New Jersey law. Defendants

argue that they are immune from these claims pursuant to the New Jersey Tort Claims Act,

N.J.S.A. 59:1-1, et seg. (“TCA”). Specifically, Defendants contend that Plaintiff's Notice of Claim

is deficient because it only alleges negligence in failing to preserve and protect Plaintiff's seized

property. Asa result, Fort Lee was not put on notice as to all of Plaintiff's claims. Def. Br. at 14-

18.

A party that asserts a tort claim seeking damages from a public entity or employee must

comply with the TCA, which “establishes the procedures by which [such] claims may be brought.”

D.D. v. Univ. of Med. & Dentistry of N.J., 213 NJ. 130, 146 (2013) (quoting Beauchamp v.

Amedio, 164 N.J. 111, 116 (2000)). One requirement is that a plaintiff must file a notice of claim

that, among other things provides “the date, place and other circumstances of the occurrence or

transaction which gave rise to the claim asserted” and “fa] general description of the injury,

? Plaintiff asserts a § 1985 conspiracy claim in his Complaint. Plaintiff, however, agrees to dismiss

his § 1985 conspiracy claim because it requires a discriminatory motive, which Plaintiff concedes

he did not plead. Pif. Opp. at 2.

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damage or loss incurred so far as it may be known at the time of presentation of the claim.”

N.J.S.A. 59:8-4. The TCA notice requirement, however, “is not intended as ‘a trap for the

unwary.’” Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009) (quoting Lewe v.

Zarghami, 158 N.J. 606, 629 (1999)). Therefore, “substantial rather than strict compliance with

the notice requirements of the Act may satisfactorily meet the statute’s mandates.” Jd. In this

instance, Plaintiff's notice of claim states that items seized pursuant to a search warrant

“disappeared,” that Defendants “failed to use due care in preserving and protecting seized

property,” and lists the missing property. Certification of Counsel, Ex. E, D.E. 3-8. The notice of

claim adequately put Defendants on notice of Plaintiff's tort claims.®

Next, Defendants maintain that Fort Lee has immunity for Plaintiffs claim for negligence

because Plaintiff's allegations arise from discretionary duties. Accordingly, Defendants contend

that the negligence claim must be dismissed as to Fort Lee as a matter of law. Def. Br. at 17.

Defendants provide no legal support for this argument. Generally, a public entity is immune from

tort liability “unless there is a specific statutory provision imposing liability.” Kayrar v. Borough

of Wallington, 171 N.J. 3, 10 (2002). But “[t]he burden of proof in establishing the applicability

of the immunities rests with the public entity.” Manna v. State, 129 N.J. 341,351 (1992). Because

Defendants fail to provide any legal support to their argument as to Fort Lee’s immunity,

Defendants’ motion is denied on these grounds.

As for Plaintiff's tort claims against the Individual Defendants, Defendants argue that they

are immune from liability for the tort claims because they were acting pursuant to their

discretionary duties and were acting in good faith in the execution or enforcement of the law. Def.

8 Defendants also take issue with the fact that Plaintiff failed to include his Section 1983 and

NJCRA claims in the Notice of Claim. Def. Br. at 16. But constitutional claims are not subject to

the TCA. Purvis v. City of Newark, No. 16-1830, 2017 WL 1032991, at *4 (D.N.J. Mar. 16, 2017).

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Br. at 17. Again, outside of citing to the statutory provisions that create discretionary immunity

and immunity based on the good faith execution of the law, Defendants provide no case law to

support their argument. And neither statutory provision appears to be applicable. See, e.g., Costa

v. Josey, 83 N.J. 49, 60 (1980) (explaining that discretionary function immunity is limited to

“actual policymaking”); Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000) (“The same

standard of objective reasonableness that applies in Section 1983 actions also governs questions

of good faith arising under the Tort Claims Act.”), Accordingly, Defendants’ motion is also denied

on these grounds.

Finally, Defendants argue that Fort Lee and the Individual Defendants named in their

official capacities are immune from Plaintiffs claims for conversion and conspiracy because they

are intentional torts. Def. Br. at 18-19; 21. Plaintiff agrees that Fort Lee cannot be vicariously

liable for intentional torts committed by an employee. Plf. Opp. at 43 (citing Hoag v. Brown, 397

N.J. Super. 34, 54 (App. Div. 2007). As a result, Plaintiff's claims for conversion and for a civil

conspiracy are dismissed as to Fort Lee and to the extent that Plaintiff's claims are asserted against

any Defendant in his official capacity.

2. Failure to State a Claim”

a. Conversion

Defendants argue that Plaintiff fails to state a claim for conversion. Def. Br. at 19-20,

Conversion is the “wrongful exercise of dominion or control over property of another without

authorization and to the exclusion of the owner’s rights in that property.” City of Atlantic City v.

Zemurray St. Capital, LLC, No. 14-5169, 2017 WL 6638203, at *17 (D.N.J. Dec. 29, 2017)

(quoting Chicago Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 456 (App. Div. 2009)) (internal

Defendants do not seek to dismiss Plaintiff's negligence claim on Rule 12(b)(6) grounds.

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quotation marks omitted). Under New Jersey law, the elements of conversion are “(1) the

existence of property, (2) the right to immediate possession thereof belonging to plaintiff, and (3)

the wrongful interference with that right by defendant.” Jd, Although Plaintiffs property was

seized pursuant to a valid warrant, Plaintiff has alleged that his criminal case is over. Compl. {

76. Once criminal proceedings are terminated, “the person from whom the property was seized is

presumed to have a right to its return.” See United States v. Chambers, 192 F.3d 374, 377 (3d Cir.

1999); New Jersey v. One 1986 Subaru, 120 N.J. 310, 317 (1990) (explaining that “[IJegally seized

property may be retained as long as the retention is reasonably related to the government’s

legitimate need for it”). Thus, Plaintiff sufficiently pleads that he presently has a right to the return

of his property. Accordingly, Defendants’ motion to dismiss the conversion claim is denied.

b. Civil Conspiracy

In Count Six, Plaintiff pleads a claim for civil conspiracy. In New Jersey, four elements

comprise civil conspiracy: “‘(1) a combination of two or more persons; (2) a real agreement or

confederation with a common design; (3) the existence of an unlawful purpose, or of a lawful

purpose to be achieved by unlawful means; and (4) proof of special damages.’” MaxLite, Inc. v.

ATG Elees., Inc., 193 F. Supp. 3d 371, 390 (D.N.J. 2016) (quoting Morganroth & Morganroth vy.

Norris, McLaughlin & Marcus, 331 F.3d 406, 414 (3d Cir. 2003)); Banco Popular N. Am. v. Gandi,

184 N.J. 161, 177 (N.J. 2005). Moreover, the underlying unlawful conduct must give rise to an

independent right of action. Banco Popular N. Am., 184.N.J. at 178. As discussed with respect to

Plaintiff's § 1983 conspiracy claim, Plaintiff pleads sufficient facts to establish that two or more

Defendants conspired to unlawfully retain his personal property through the search and that he was

damaged as a result of the conspiracy. Accordingly, Defendants’ motion is denied on these

grounds. :

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IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss, D.E. 3, is GRANTED in

part and DENIED in part. With respect to the portions of the Complaint that are dismissed, the

dismissal is without prejudice. Plaintiff shall have thirty (30) days to file an amended complaint,

which cures the deficiencies noted herein. If Plaintiff does not file an amended pleading, the

dismissed claims will be dismissed with prejudice. An appropriate Order accompanies this

Opinion.

Dated: January 3, 2020

John Michael Vazquez) US/D.J.

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