DEL TURCO v. RANDOLPH TOWNSHIP POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

OFFICER JASON DEL TURCO, Civ. No. 18-15086 (KM) (MAH)

Plaintiff,

OPINION

v.

RANDOLPH TOWNSHIP POLICE

DEPARTMENT, DAVID STOKOE,

individually and in his capacity as

the Chief of Police Of Randolph

Township Police Department,

TOWNSHIP OF RANDOLPH, MORRIS

COUNTY PROSECUTOR’S OFFICE,

BRADFORD SEABURY AND JOHN

MCNAMARA, JR., both individually

and in their capacities as current

and/or former employees of Morris

County Prosecutor’s Office

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Before the Court are motions to dismiss the Second Amended Complaint

(“2AC”, DE 49) brought by defendants the Randolph Township Police

Department, Chief of Police David Stokoe, and the Township of Randolph

(collectively, the “Randolph Defendants”) (DE 50), and by defendants Morris

County Prosecutor's Office, Bradford Seabury, and John McNamara, Jr.

(collectively, the “Morris County Defendants”) (DE 56).

The plaintiff admits that, when he was a Randolph Township police

officer, he lied in testimony before the grand jury and again in court ata

suppression hearing. He avoids specifying the precise falsehoods, but asserts

the legal conclusion that his testimony, though false, did not constitute a

Brady violation.!

Represented by counsel, he negotiated a deal with the County

Prosecutor, who agreed not to press criminal charges in return for his

immediate resignation. The County Prosecutor circulated two letters, the so-

called “Brady Orders,” which revealed the false testimony in jurisdictions or

cases where Del Turco was involved. The plaintiff portrays himself as a

scapegoat, claiming variously that he only perjured himself because he believed

that was what the prosecutor wanted him to do, or that the prosecutor’s

circulation of the information that he had testified falsely amounted to

dismissal, or the imposition of “discipline” without the requisite civil service

protections. He suggests that Brady disclosures of his admitted perjury

constitute a reputational harm entitling him to damages, and that the Brady

Orders must be withdrawn.

The duty to tell the truth under oath is absolute and nondelegable. For a

police officer to violate it in a criminal case, even if he thinks the prosecutor

wanted him to do so, invites sanctions far more severe than dismissal. Nor can

the prosecution suppress such information out of “fairness” to the officer. The

prosecution’s obligation to disclose that a police witness has testified falsely is

a constitutional command under Brady and Giglio. Indeed, for the prosecution

1 As used herein, “Brady” or “Brady/ Giglio” refers to Supreme Court precedent

that held that the prosecution has a due process obligation to disclose to the

defendant its knowledge of material evidence favorable to the defendant, either

because the evidence is exculpatory or because it can serve to impeach a key

prosecution witness. See Kyles v. Whitley, 514 U.S. 419, 433 (1995); Giglio v. United

States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1967). “There are three

components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence

must have been suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Now false testimony, of course, may itself amount to or contribute to a Brady

violation in the case in which it is given. MCPO had a larger Brady/ Giglio concern,

however. The fact that Del Turco had testified falsely was, in itself, a fact that the

prosecution would be obligated to disclose in any other case that depended on the

credibility of Del Turco.

to fail to take steps to ensure disclosure—as the plaintiff appears to be

suggesting—would itself constitute wrongdcing of constitutional dimension.

For the reasons explained herein, I will grant defendants’ motions to

dismiss (DE 50, 56) as to the federal claims; I will decline to exercise

supplemental jurisdiction over the state claims; and I will remand this case to

the state court from which it originated. Mr. Del Turco’s accusations of

scapegoating, violation of civil service protections, and ulterior prosecutorial

motives may or may not support a state-law cause of action, a question I will

leave to the state courts.

I. Summary”

A. Factual Background?

Mr. Del Turco was a patrolman employed by the Randolph Township

Police Department (“Randolph PD”). (2AC □ 14)

The “factual background” portion of the 2AC (see id. at p. 3-5) is vague

about the impetus for Mr. Del Turco’s resignation from the Randolph PD.

Counts 10-12 clarify that Del Turco’s resignation stemmed from testimony he

gave in the grand jury and at a suppression hearing concerning a motor vehicle

stop that occurred on March 24, 2017. (id. 13, p. 10-19; see also DE 58-4

(Video of Proffer Session) (“Exhibit D”))

The 2AC asserts, though not very clearly, that the motor vehicle stop

unfolded as follows. Randolph PD notified MCPO that a confidential informant

was assisting with a narcotics investigation that was targeting an individual,

2 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“OAC” = The second amended complaint filed by Mr. Del Turco (DE 49).

3 The facts presented in this section are accepted as true for purposes of the

motions to dismiss. I summarize those facts presented in the “factual background”

portion of the 2AC as well as those facts that were additionally alleged under Counts

10 through 12, but which were not otherwise included under the “factual background”

section of the 2AC.

“D.W.”, who was attempting to purchase heroin. (Id. 44 57-59) Mr. Del Turco

was assigned to follow D.W. after the controlled drug purchase and to conduct

a motor vehicle stop. (Id. 4 59) An MCPO “special enforcement unit” provided

two trail cars to conduct surveillance of the buy, and MCPO detectives were on

the scene to observe. (Id. J] 60-64) The 2AC suggests that the traffic stop was

conducted by Mr. Del Turco and reported as a DWI. Del Turco asserts that

MCPO’s special enforcement unit ordered that video recording monitoring be

turned off during the traffic stop. (id. § 65) He further alleges that Chief

Assistant Prosecutor Seabury ordered an illegal strip search of D.W. (id. {J 66-

69)

After the motor vehicle stop, Chief AP Seabury allegedly attempted to

cover up the illegality of the strip search and change the justification for

prosecuting D.W. from a pre-planned narcotics stop to a DWI arrest. (id. □□ 70-

74) MCPO ordered that no reports were to be generated from the narcotics

investigation. As a result, MCPO’s general investigation unit was unaware that

a special enforcement unit was involved, or that this was anything other than a

DWI. (id. | 75-78) In advance of Mr. Del Turco’s grand jury testimony, the

assistant prosecutor prepared him to testify as to the DWI case. (Id. J] 80-84)

(The implication may be that this particular prosecutor did not know about the

drug aspect of the case.) Mr. Del Turco apparently did not reveal the drug

aspects of the case. He does not otherwise specify the precise nature of the

falsehoods in his testimony. Mr. Del Turco testified about the DWI, in line with

his police report. (Id. | 84) He believed that the prosecutor had made a

deliberate decision that he should withhold further information, and so he did

so. (Id. J] 85-86)

On January 10, 2018, Mr. Del Turco again testified, this time ata

suppression hearing before the Hon. Thomas J. Critchley of the Superior Court

of New Jersey. (id.) Here there is a major gap in the presentation. Mr. Del

Turco’s complaint alleges in conclusory fashion that his testimony was “not a

Brady violation” but declines to state what the testimony consisted of or the

manner in which it was false. He states that his testimony was incorrectly

characterized as a “Brady violation.” Still, stating a legal conclusion about the

testimony’s status under Brady is not a substitute for stating factually what it

consisted of—particularly where he admits that it was false, and acknowledges

receipt of the transcript.

The Morris County defendants caused the issuance of two

communications that the 2AC calls the “Brady Orders.” These disclosed Del

Turco’s false testimony so that it could be disclosed to the defense in criminal

cases pursuant to the government’s Brady obligations. It seems that MCPO

issued the first Brady Order on or about January 22, 2018. On March 1, 2018,

Mr. Del Turco resigned as part of a non-prosecution agreement negotiated by

his counsel. (Jd. 1] 96-98) On March 13, 2018, shortly after the resignation,

MCPO issued a second, revised version of the Brady Order which stated that

Del Turco had resigned. (Id. J] 16-18)

On April 23, 2018, Mr. Del Turco wrote to defendant David Stokoe, the

Chief of Randolph PD. The Brady Orders, according to the letter, were

“inaccurate.” (Id. | 19) The letter warned Chief Stokoe that for the Randolph

Police Department to obey those orders would be unlawful. Here, it is fairly

clear that Del Turco is invoking his state-law rights as a public employee;

According to the 2AC, the letter stated that Brady disclosure of “information

concerning Plaintiffs January 10, 2018 testimony and its effects on his future

employment would constitute a violation of state law as it would disclose

information related to Plaintiff's employment that is not subject to disclosure

under the circumstances.” (Jd, | 22) Chief Stokoe, through counsel, advised

that he would abide by MCPO’s Brady Orders. (id. J 24)

In early June 2018, Mr. Del Turco received an offer of employment from

another police department within Morris County. (/d. 26) Del Turco alleges

that MCPO and/or McNamara learned of this employment offer and sent that

Chief of Police a letter with the intent of having the offer of employment

revoked, (id. 27) On or about June 17, 2018, Mr. Del Turco’s offer of

employment was revoked. (Id. { 28)

B. Proffer Session Video, “Exhibit D”

Mr. Del Turco submits as part of his opposition to the Morris County

Defendants’ motion to dismiss a video recording of the March 1, 2018 proffer

session that led to the non-prosecution agreement and his resignation. (Exhibit

D) Because this proffer session is discussed in the QAC (see id. [J 96-100}, and

the video is submitted by plaintiff himself, I will consider it. To be clear, I

consider the video as a record of what was said, and as a summary of the basis

on which the non-prosecution agreement was reached. I do not, for example,

take as true the prosecutor’s statements of historical fact.

Here is a summary of the video’s contents:

Mr. Del Turco and his counsel, Amie Dicola, Esq., were present at the

proffer session, as was Morris County Prosecutor John McNamara, Jr. Mr.

McNamara began by explaining the rationale behind the decision by MCPO to

offer a deal to Mr. Del Turco. MCPO had conducted an investigation and

produced to Del Turco and his counsel some preliminary discovery. In

particular, they had furnished to Mr. Del Turco a transcript of his testimony

and some reports generated by the investigation.

McNamara then noted that it was Del Turco himself who reported that he

had testified falsely at the suppression hearing. Because Del Turco had come

forward voluntarily, the prosecutor’s office was prepared to offer more lenient

terms than it otherwise would have done. Nevertheless, McNamara’s position

was fairly firm in light of the fact that Del Turco’s conduct had jeopardized

pending MCPO cases.

Mr. McNamara stated that the investigation had revealed that Mr. Del

Turco’s decision to testify falsely was his own independent choice. Del Turco

knew that the operation involved a confidential drug investigation. Del Turco

was also told by his sergeant to tell the assistant prosecutor the truth about

the drug investigation. Del Turco, McNamara said, nevertheless withheld that

information. According to Mr. McNamara, there was no reason to mislead the

prosecutors, who are experienced in handling confidential drug investigations.

Had they known the truth, they could have dealt with confidentiality concerns

within the bounds of the rules of evidence. By failing to share this information

with the prosecutor, Del Turco enabled his own false or misleading testimony.

Mr. McNamara informed Mr. Del Turco and his counsel that his office

had to consider whether it was possible to continue to work with Del Turco in

the future. Del Turco, he said, would not be a viable witness given that, to

fulfill its Brady/ Giglio in future cases, MCPO would have to reveal that he had

testified falsely. Indeed, said McNamara, MCPO had already been forced to

send letters to counsel disclosing this issue in other cases involving Del Turco.

The case concerning “D.W.” discussed in the 2AC (see 2AC 57-59), for

example (referred to as the “Wolfe case”), was dismissed based on the false

testimony of Del Turco. In another case, MCPO was forced to make a modified

plea offer because of Del Turco’s testimony. McNamara also informed Del Turco

that Randolph had recently received a notice of tort claim from D.W. seeking

civil redress.

Mr. McNamara noted that MCPO appreciated that Del Turco self-reported

the false testimony. MCPO was also of the opinion that Del Turco’s behavior

could be attributed to poor judgment rather than malice. Therefore, McNamara

offered Del Turco two options: remain an officer and face criminal charges, or,

in the alternative, resign and the office would agree not to prosecute. The latter

alternative, Mr. McNamara stated, would come at a cost to MCPO, which could

be criticized for not charging Del Turco. MCPO, said McNamara, was not

prepared to negotiate further; it was either one alternative or the other.

During the proffer session, Mr. McNamara made it clear that should Mr.

Del Turco take the resignation alternative, MCPO would do two things. First, it

would state in writing that they chose not to prosecute Mr. Del Turco as a

matter of discretion. Second, it would amend the January Brady Order to state

that Del Turco had resigned. The Order would not disclose the non-prosecution

agreement as such.

Mr. Del Turco’s counsel acknowledges at the proffer session that she had

discussed the Brady Order with Del Turco. She confirmed with McNamara that

the Brady Order could not be withdrawn. McNamara stated that it had already

been sent to the Randolph Municipal Prosecutor and other prosecutors that

had cases involving Del Turco. Del Turco’s counsel then inquired as to whether

the Brady Order would be publicly disclosed. McNamara confirmed that it

would be necessary to disclose it to the defense in cases where Mr. Del Turco

was involved. But should Del Turco take the resignation option, said

McNamara, this would become a personnel issue that need not be further

publicized. McNamara clarified, however, that if Mr. Del Turco chose to seek

employment elsewhere, Randolph would be instructed to release the letter to

any future employer as to which there was an obligation of disclosure.

C. Procedural History

On July 30, 2018, Mr. Del Turco filed a complaint in the Superior Court

of New Jersey, Morris County Vicinage. (DE 1-3) On October 30, 2018, MCPO

removed the action to this federal court based on general references to the

federal constitution (although the complaint did not explicitly assert a § 1983

claim). (DE 1)

Prior to defendants’ answering or otherwise moving with respect to the

complaint, on November 8, 2018, Mr. Del Turco filed an amended complaint.

(DE 7)

On November 15, 2018, the Randolph PD moved to dismiss the amended

complaint. (DE 8) On December 23, 2018, MCPO moved to dismiss the

amended complaint. (DE 16) On January 10 and 22, 2019, Mr. Del Turco filed

papers in opposition. (DE 24, 27) On March 11, 2019, administratively

terminated those motions to dismiss based on plaintiff's contention in his

opposition to the Morris County Defendants’ motion to dismiss (DE 24) that his

true intent was to name as defendants Assistant Prosecutor (“AP”) Seabury and

County Prosecutor McNamara. (DE 36)

On April 10, 2019, plaintiff filed a motion to file a second amended

complaint. (DE 37) With the authorization of the Magistrate Judge, defendants

did not oppose the motion to amend. Instead, on June 28, 2019, Randolph PD,

Mr. Stokoe, and the Township of Randolph filed a motion to dismiss the 2AC.

(DE 50) On September 6, 2019, MCPO, John McNamara, Jr. and Bradford

Seabury filed their motion to dismiss the 2AC. (DE 56) Mr. Del Turco has filed

oppositions in response to those motions. (DE 54, 58)

The 2AC asserts twelve causes of action. Counts 1 through 9 are

asserted against Chief Stokoe, Randolph PD, Township of Randolph, MCPO,

and John McNamara, Jr.—i.e., all defendants except for AP Seabury. Counts 1

through 5, 8, and 9, do not assert recognized federal causes of action; rather,

they assert that a defendant’s behavior has been “arbitrary, capricious and

unreasonable.” (2AC p. 6-9)

Counts 6 and 7, which are nearly identical, assert that “Defendant

Stokoe’s commitment, on behalf of Defendants Township of Randolph and

Randolph Township Police Department, to abide by the Brady Orders, as

memorialized by his April 27, 2018 correspondence, constitutes discipline

imposed, without due process, outside of the formal disciplinary process, in

contravention of” various sources of rights:

e Rights under Title 40A of the New Jersey Attorney General’s

Guidelines;

e Due process rights;

e Administrative due process rights;

e First Amendment rights;

e Fourteenth Amendment rights;

e Liberty interests;

e Property interests;

e Other fundamental rights guaranteed by the U.S. Constitution, the

New Jersey Constitution, and Title 40A of the New Jersey Attorney

General’s Guidelines.

(See 2AC JJ 45-50)

On February 11, 2020, I held oral argument. Mr. Del Turco’s counsel

stated that Counts 1 through 9, despite their wording, are intended to assert

violations of federal substantive and procedural due process rights.*

The relief requested in Counts 1-9 is declaratory and injunctive. “Plaintiff

demands a departmental hearing pursuant to Title 40A, the New Jersey

Attorney General’s Guidelines, and the Randolph Township Police

Department’s policies, rules, regulations, general orders, and collective

bargaining agreements.” (Id {| 50) Mr. Del Turco also seeks judgment in the

form of being provided with copies of the Brady Orders, enjoining defendants

from further abiding by the Brady Orders, compelling defendants to revoke the

Brady Orders, destruction of the Brady Orders, and a declaration that

compliance with the Brady Orders would constitute violations of Attorney

General guidelines and N.J. Stat. Ann. Title 40A. (Id. p. 9-10)

The 2AC then asserts three more causes of action against the Morris

County Defendants. Those counts are:

e Count Ten: Fraud and Breach of Fiduciary Duty asserted against

MCPO and Chief Assistant Prosecutor Seabury;

e Count Eleven: Fraud and Fraud in the Inducement asserted

against MCPO and John McNamara, Jr.; and

e Count Twelve: Tortious Interference with Contractual Relations

asserted against MCPO and John McNamara, Jr.

These three Counts seek damages, attorney’s fees, and costs.

Ii. Legal Standard

A. Motion to Dismiss

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a

claim upon which relief can be granted. The defendant, as the moving party,

bears the burden of showing that no claim has been stated. Animal Science

4 Here, the complaint perhaps betrays its state-court origins. These counts most

resemble a state-law action in lieu of prerogative writs. See N.J. Ct. R. 4:69-1. For

purposes of this motion, I will indulge arguendo counsel’s representation that they are

now intended to assert federal due process claims, despite the lack of any such

language.

10

Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).

For the purposes of a motion to dismiss, the facts alleged in the complaint are

accepted as true and all reasonable inferences are drawn in favor of the

plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.

of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff's obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)}. Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff's right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir, 20193).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t}he plausibility standard

is not akin to a ‘probability requirement’. . . it asks for more than a sheer

possibility.” id.

B. Extrinsic documents

Plaintiff's brief in opposition to the Morris County Defendants’ motion to

dismiss (DE 58) attaches a video of a March 2018 proffer session. (“Exhibit D’,

DE 58-4) This video pertains to the non-prosecution agreement and decision to

resign from the Randolph PD that is discussed throughout the 2AC. Its

contents are described in Section I.B, supra.

Typically, when a federal court relies on matter outside of the pleadings,

it must convert a motion to dismiss into a motion for summary judgment

11

pursuant to Rule 56, Fed. R. Civ. P. In announcing its intention to do so, the

court will then provide all parties with a reasonable opportunity to present all

material pertinent to a Rule 56 motion. See Fed. R. Civ. P. 12(d). That

procedure allows every party a fair opportunity to respond to any extrinsic

documents that the court considers. Pension Ben. Guar. Corp. v. White Consol.

Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A court may, however,

without converting the motion to one for summary judgment, consider

documents to which a plaintiff refers in the complaint or upon which its claims

are based. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir.1997); Pension Benefit, 998 F.2d at 1196. In such a case, a party “obviously

is on notice of the contents of the document, and the need for a chance to

refute evidence in greatly diminished.” Pension Benefit, 998 F.2d 1192 at 1196-

97.

Here, the 2AC refers to the proffer session. Del Turco’s claims arise in

substantial part from this proffer session, which produced the non-prosecution

agreement and his resignation. And of course it is plaintiff, not defendant, who

submitted the video to the court. I will consider it, not for the truth of any

declarant’s statements, but for the issue of what was said at the meeting.

III. Counts One through Nine

The Randolph Defendants, MCPO, and Mr. McNamara move to dismiss

Counts 1 through 9 under Rules 12(b)(6) and 12(b}(1). Only Counts 6 and 7

mention the federal constitution; at oral argument, however, counsel stated

that Counts 1 through 9 should all be read as asserting violations of Mr. Del

Turco’s procedural and substantive due process rights. For purposes of

argument, I will liberally read all of Counts 1 through 9 to allege violations of

42 U.S.C. § 1983.

“Section 1983 imposes civil liability upon any person who, acting under

the color of state law, deprives another individual of any rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Shuman

ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). The

12

2AC fails to state a federal claim against the Randolph Defendants, MCPO, and

Mr. McNamara. For the reasons stated below, the motions to dismiss are

granted.

A. Procedural Due Process

The 2AC alleges that the disciplinary proceedings (or lack thereof}, the

distribution of the Brady Orders, and defendants’ abiding by those Orders

violated Mr. Del Turco’s right to due process. In general, a procedural due

process claim requires plaintiff to allege that: (1) “he was deprived of an

individual interest that is encompassed within the Fourteenth Amendment's

protection of ‘life, liberty, or property”; and (2) “the procedures available to him

did not provide ‘due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225,

233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000)).

The individual interests at stake appear to be Mr. Del Turco’s continued

employment and his reputational interests. The alleged deprivation of due

process appears to be the failure to adhere to the processes for firing a public

employee prescribed by N.J. Stat. Ann, Title 40A.

1. Randolph Defendants

As to the Randolph Defendants—Randolph PD, Randolph Township and

Chief Stokoe—I find that no procedural due process violation has been alleged.

The 2AC seeks to have the Brady Orders nullified and to enjoin the

Randolph Defendants from complying with them. (2AC 7] 16-18) However, as

the 2AC makes clear, those Orders were issued by MCPO. (/d.) County

Prosecutors like MCPO “have broad supervisory authority over the operations

of municipal police departments.” Tompkins v. Thomson, No. A-3676-14T1,

2017 WL 2730256, at *5 (N.J. Super. Ct. App. Div. June 26, 2017) (citing

Cherrits v. Village of Ridgewood, 311 N.J. Super. 517, 532 (N.J. Super. Ct. App.

Div. 1998)). The New Jersey Supreme Court has explained:

It is a matter of common knowledge that the local law enforcement

authorities ... are responsive to the county prosecutor’s concept of

law enforcement on pain of possible indictment if they do not

13

cooperate with him in enforcing the law. He does not stand alone.

He is in a position to command the cooperation of all the law

enforcing authorities in the county.

State v. Winne, 12 N.J. 152, 169, 96 A.2d 63 (1953); see also N.J. Stat. Ann. §

2A:158-5 (stating that each county prosecutor is vested with the same powers,

within the county, as the attorney general}; N.J. Stat. Ann. § 52:17B-112(b) (“It

shall be the duty of the police officers of the several counties and municipalities

... to cooperate with and aid ... the several county prosecutors in the

performance of [their duties].”).

Mr. Del Turco asserts that the Brady Orders were “unlawful” because his

testimony did not constitute a Brady violation. (DE 54 at 9) That is a legal

conclusion, not a fact. He does not dispute that his testimony was false

(although he blames the prosecutors for it). And indeed it might be a Brady

violation for the prosecution to fail to disclose that an officer involved in a case

had testified falsely.

At any rate, in light of MCPO’s broad supervisory powers, it is unclear

what process was denied by the Randolph Defendants. By Mr. Del Turco’s own

admission, he self-reported that he had testified falsely (see Exhibit D), thereby

setting in motion the distribution of the Brady Orders and the negotiation of

his resignation in return for nonprosecution. MCPO, not Randolph, conducted

an investigation into Mr. Del Turco’s behavior. The Brady Orders were issued

by MCPO, not Randolph. MCPO, not Randolph, negotiated the terms of Del

Turco’s resignation. And, as discussed more fully below, Mr. Del Turco resigned

pursuant to a non-prosecution agreement negotiated by his counsel with

MCPO. (Id.) None of this involved the Randolph Defendants or any disciplinary

actions taken by the Randolph Defendants. Del Turco has failed to allege any

manner in which the Randolph Defendants denied him due process in

connection with the termination of his employment via voluntary resignation.

Nor is there anything procedurally defective about the Randolph

defendants’ compliance with the Brady Orders from MCPO. There is no

14

demonstration that MCPO lacked the authority to issue them.® I will not tarry

over the notion that the prosecution should be barred from disclosing in

criminal cases that a police witness has lied under oath. Perjury is

quintessential Giglio material, and such disclosure is a constitutional

obligation. Even if there had been a violation of Mr. Del Turco’s procedural

rights, that Brady/Giglio obligation would be unaffected.

I find that Mr. Del Turco has failed to assert that the Randolph

Defendants violated his procedural due process rights. I will dismiss Counts 1

through 9 against the Randolph Defendants insofar as they assert procedural

due process violations.

2. Morris County Defendants

The real targets of Counts 1 through 9 appear to be the Morris County

Defendants—MCPO and McNamara—who caused the Brady Orders to be

issued. The 2AC fails to point to any deficiency in the procedure by which the

Brady Orders were generated (he sometimes refers to this process as being put

on a “Brady list”). Nor does it identify any deficiency in the precedure by which

the non-prosecution agreement and resignation were negotiated, in his

presence, through his counsel. (DE 56-3 at 36-37)

As for the Brady Orders, no procedural due process violation appears on

the face of the 2AC. To start, Mr. Del Turco self-reported that he had been

untruthful. MCPO then conducted an investigation and met with Del Turco,

who was given the opportunity to be heard, through counsel. (See Exhibit D.)

At this meeting, Del Turco, through counsel, had the opportunity to discuss

the Brady Orders and, in fact did so—the January 2018 Brady letter was a

focus of the March 1, 2018 proffer session. (/d.) The parties then discussed that

the Order (sometimes referred to as a letter) which had been distributed to in

5 The main authority cited, Schmidt v. United States, 145 Ct. Cl. 632 (1959), is an

old Court of Claims case involving a claim of employee insubordination. It has nothing

to do with whether a police department may disregard the County Prosecutor’s

position on a Brady disclosure issue.

15

jurisdictions where the prosecutor’s office was obligated to turn over

Brady/ Giglio materials. (Id.) Del Turco was also advised that, should he resign,

a revised letter would be issued reflecting the resignation. (/d.) Del Turco’s

counsel asked additional questions about these letters; explained that she had

discussed the issue of the letters with her client; asked if they could be revoked

(McNamara stated that they could not be); discussed with prosecutor

McNamara the revision of the letters should Mr. Del Turco resign; and obtained

a commitment that the letters would not be publicly disseminated. (/d.) In

short, Del Turco, with counsel, was given an opportunity to confront these

letters and dispute their accuracy. At the time, McNamara informed Del Turco

and his counsel that MCPO had authorized the Randolph defendants to

disclose the letters should Mr. Del Turco seek future employment in a context

where Brady disclosure of the false testimony would be required. (Id.) Del Turco

agreed to resign, voluntarily relinquishing his employment status. Under these

circumstances, I do not find a violation of Mr. Del Turco’s due process rights.

Mr. Del Turco claims that he was terminated without due process in that

he was not “afforded all of the protections of Title 40A. Pursuant to N.J.S.A.

40A:14-147 a municipal police officer cannot be terminated without just

cause.” (DE 54 at 8)

N.J. Stat. Ann § 40A:14-147 provides that

no permanent member or officer of the police department or force

shall be removed from his office, employment or position for

political reasons or for any cause other than incapacity,

misconduct, or disobedience of rules and regulations established

for the government of the police department and force, nor shall

such member or officer be suspended, removed, fined or reduced

in rank from or in office, employment, or position therein, except

for just cause as hereinbefore provided and then only upon a

written complaint setting forth the charge or charges against such

member or office. The complaint shall be filed in the office of the

body, officer or officers having charge of the department or force

wherein the complaint is made and a copy shall be served upon

the member or officer so charged, with notice of a designated

hearing thereon by the proper authorities, which shall be not less

than 10 nor more than 30 days from date of service of the

complaint.

16

Accordingly, should an officer be removed for cause, that officer has the right to

understand the charges leveled against him and afforded a hearing.

Here, by contrast, Mr. Del Turco resigned. Of course, he could have

elected to stand and fight. If so, he presumably could have availed himself of

the Title 40A procedures, to the extent they applied, to fight his dismissal. But

he didn’t; to avoid prosecution, he resigned. He relinquished the alleged

property right in continued employment that is the foundation of his due

process claim. Having taken the second option and avoided criminal

prosecution, he now seeks to go back and claim the benefits of the first option

as well.

Where, as here, an employee resigns or retires from his or her position, I

must presume such conduct to be voluntary. Leheny v. City of Pittsburgh, 183

F.3d 220, 227 (3d Cir. 1999) (citing Angarita v. St. Louis Cty., 981 F.2d 1537,

1544 (8th Cir. 1992)). “This presumption remains intact until the employee

presents evidence to establish that the resignation or retirement was

involuntarily procured.” Id. The Third Circuit has stated that there are two

circumstances under which an employee’s resignation or retirement will be

deemed involuntary for purposes of due process claims: (1) “when the employer

forces the resignation or retirement by coercion or duress, or (2) when the

employer obtains the resignation or retirement by deceiving or misrepresenting

a material fact to the employee.” Id. at 228. Such circumstances are not alleged

here.

Plaintiff suggests that his resignation from the Randolph PD was

somehow involuntary because he faced an “impossible” choice and his

resignation was induced by “false and/or misleading statements of material

fact and/or material omissions related to the true intent of Defendants Morris

County Prosecutor’s Office and/or John McNamara, Jr. to effectively bar

Plaintiff from ever obtaining employment in law enforcement again.” (2AC 98)

Notwithstanding that Mr. Del Turco has amended his complaint twice, he has

not offered any evidence, or even any concrete factual allegation, to support his

17

contention that his resignation was involuntary. Exhibit D, moreover—

submitted by him—establishes the opposite. After a meeting at which he was

represented by counsel, he chose to resign rather than face criminal charges.

And no misstatement of material fact as to the prosecutors’ intentions appears;

they told him they would reveal the Brady Order to a new employer as

appropriate.

That Mr. Del Turco faced an unappetizing set of choices does not convert

his resignation from a voluntary one to an involuntary one:

[T]hat the choice is between comparably unpleasant alternatives—

e.g., resignation or facing disciplinary charges—does not of itself

establish that a resignation was induced by duress or coercion,

hence was involuntary. Id. This is so even where the only

alternative to resignation is facing possible termination for cause,

unless the employer actually lacked good cause to believe that

grounds for termination existed. Id. at 587-88 (“The fact remains,

plaintiff had a choice. She could stand pat and fight”) (emphasis in

original); see also Pitt v. United States, 420 F.2d 1028, 190 Ct. Cl.

506 (1970) (resignation not involuntary where alternative was

criminal charges); Cosby v. United States, 417 F.2d 1345, 189 Ct.

Cl. 528 (1969) (same; charges of gross insubordination), Autera v.

United States, 389 F.2d 815, 182 Ct. Cl. 495 (1968) (same; charges

of incompetence); but see Schultz, 810 F.2d at 1136-37

(resignation involuntary where induced by threat of termination

where employer lacked good faith basis for believing that cause

existed).

Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 174-75 (4th Cir.

1988); see also Boody v. Twp. of Cherry Hill, 997 F. Supp. 562, 571 (D.N.J.

1997) (“The mere fact that plaintiff was faced with a choice between

comparably unpleasant alternatives—e.g., resignation or facing criminal

charges—does not establish that his resignation was involuntary.” (citations

omitted)).

In Boody, for example, a Cherry Hill police officer resigned from his

position after becoming implicated in a retaliatory series of events against

another officer. 997 F. Supp. at 565. The police department began an

investigation and, on the advice of his counsel, plaintiff resigned. Id. at 566. As

18

part of his resignation agreement, plaintiff agreed to testify truthfully before a

grand jury in exchange for not being subject to criminal prosecution. Id. The

plaintiff then filed suit alleging, inter alia, a Section 1983 claim that his

Fourteenth Amendment rights were violated because his resignation was

involuntary. The Court disagreed, finding no violation of plaintiff's

Constitutional rights:

There is no dispute that plaintiffs involvement in the Zanetich

incident, which plaintiff has admitted, precipitated an investigation

of his conduct by both the Police Department and the Prosecutor's

Office and eventually led to plaintiff's resignation. During the

course of these investigations and leading up to his resignation,

plaintiff was represented by counsel, who negotiated with the

Prosecutor’s Office and the Police Department the circumstances

under which plaintiff would tender his resignation. Under the

agreement ultimately reached, plaintiff would resign from the

Police Department and testify before the grand jury investigating

the Zanetich incident; in exchange, the Prosecutor’s Office would

not bring criminal charges against him. Pursuant to this

agreement and on the advice of his attorney, plaintiff resigned on

May 11, 1995. He later testified before the grand jury, though he

himself was never charged with any crimes.

Boody, 997 F. Supp. at 570.

Under these cases, I cannot find that Mr. Del Turco’s resignation was

involuntary in the sense of being tendered as a result of duress or deception.

The Boody facts read directly onto this case. Like the officer in Boody, Del

Turco had the option to stay and fight dismissal (or criminal charges), but

came to see resignation as the more prudent course. As in Boody, the

misconduct was admitted. Like Boody, Del Turco retained counsel. (See Ex. □□□

Del Turco and his counsel! met with MCPO to discuss a resolution. The cards

were on the table. The prosecution clearly stated that it would not withdraw the

Brady Order disclosing Del Turco’s false testimony, but would amend it to

indicate that he had resigned. Ultimately, Del Turco, like the officer in Boody,

“on the advice of his attorney, [] chose to resign, and thus relinquished his

right to continued employment and any procedural protections that go with it.”

997 F. Supp at 571.

19

Accordingly, | hold that the 2AC fails to state a federal procedural due

process violation against MCPO and McNamara.

B. Substantive Due Process

A related claim, also said to lurk in Counts 1 through 9, is that the

defendants violated Mr. Del Turco’s substantive due process rights. Those

claims, too, fail.

The Due Process Clause not only requires that the government follow

appropriate procedures when it seeks to “deprive any person of life, liberty or

property”; it also prevents “certain government actions regardless of the

fairness of the procedures used to implement them.” Daniels v. Williams, 474

U.S. 327, 331 (1986). Thus, the Due Process Clause has a substantive

component which guarantees that “all fundamental rights comprised within the

term liberty are protected by the Federal Constitution from invasion by the

States.” Planned Parenthood of Southeastern Pennsylvania, 505 U.S, 833, 847

(1992) (quoting Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J.,

concurring)). “To establish a substantive due process claim, a plaintiff must

prove the particular interest at issue is protected by the substantive due

process clause and the government's deprivation of that protected interest

shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)

(citing United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d

392, 400-02 (3d Cir. 2003)).

Mr. Del Turco asserts that he has a protectable property interest in

continued public employment (DE 54 at 8). He also states that he has a liberty

interest in his reputation as a result of the issuance of these Brady Orders and

Randolph’s compliance with them. (See DE 54 at 8 (“Plaintiffs reputation

suffered from the false allegation that he had committed a Brady violation.”))®

6 Here, as elsewhere, this description has given rise to some confusion. It is true,

of course, that the perjury may have itself created a non-disclosure that amounted or

contributed to a Brady violation in the D.W, case. But because Del Turco had

knowingly testified falsely, that fact itself was Brady material that the prosecution

would be obligated to disclose in any future case involving Del Turco.

20

The analysis regarding Mr. Del Turco’s substantive due process

allegations is largely the same as to the Randolph Defendants and Morris

County Defendants, so I merge the discussion.

1. Continued Employment

Mr. Del Turco contends that because he was a municipal police officer,

he had a right to continued public employment and should have been afforded

all the protections of Title 40A by the Randolph and Morris County Defendants.

(DE 54 at 8; DE 58 at 15-17) I disagree:

To prevail on a substantive due process claim that challenges non-

legislative state action, “a plaintiff must establish as a threshold

matter that he has a protected property interest to which the

Fourteenth Amendment’s due process protection applies.” Nicholas

v. Pennsylvania State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000)

(Alito, J.). “Whether a property interest is protected for purposes of

substantive due process is a question that is not answered by

reference to state law. Rather ... [the property interest] must be

fundamental’ under the United States Constitution.” Hill, 455 F.3d

at 234 n.12 (citing Nicholas, 227 F.3d at 140). If the interest is not

“fundamental,” the governmental action is entirely outside the

ambit of substantive process and will be upheld so long as the

state satisfies the requirements of procedural due process.

Nicholas, 227 F.3d at 142.

In Nicholas, the Third Circuit found that employment rights are not

entitled to substantive due process protection, noting that it views

“public employment as more closely analogous to those state-

created property interests that this Court has [previously] deerned

unworthy of substantive due process.” Nicholas, 227 F.3d at 143.

This approach to employment rights in the area of substantive due

process is in accord with that taken by the majority of the circuits.

See Pence, 2010 WL 2925901, at *9 (collecting cases).

Faico v. Zimmer, No. CV 13-1648, 2015 WL 7069653, at *6 (D.N.J. Nov. 12,

2015), aff'd, 767 F. App’x 288 (3d Cir. 2019). Here, as Nicholas outlines, Mr.

Del Turco did not have a Constitutionally protected right to continued public

employment. In addition, he voluntarily relinquished that employment as the

quid in exchange for the quo of non-prosecution. Nor does the substantive

component of due process incorporate a public employee’s rights under Title

21

40A of the New Jersey Statutes. Accordingly, Del Turco has not alleged, nor

can he allege, a substantive due process violation based on the loss of his

employment with Randolph PD.

In any event, it cannot be said that Mr. Del Turco’s separation from the

Randolph PD, irrespective of the procedures, “shocks the conscience.” That

standard encompasses “only the most egregious official conduct.” United

Artists, 316 F.3d at 400. New Jersey prosecutors and police departments have

a strong interest in assuring that police officers faithfully carry out their duties

and testify truthfully. Here, as Mr. Del Turco concedes, he testified

untruthfully. He says he did so because he concluded that the prosecution

wanted him to do so, but that is hardly the point. The allegations presented in

the 2AC, in light of this admission, do not plausibly establish that the

government’s negotiation of Mr. Del Turco’s resignation, through his counsel,

“shocks the conscience,” or was arbitrary or wanton.

2. Reputational Harm

Mr. Del Turco also asserts that he has a protectable liberty interest in his

reputation that was violated by the dissemination of the Brady Orders.

“[Rleputation alone is not an interest protected by the due process

clause” of the Fourteenth Amendment. Hill v. Borough of Kutztown, 455 F.3d

225, 236 (3d Cir. 2006) (quoted case and internal quotation marks omitted).

Instead, the Due Process Clause protects a liberty interest in reputation only

when the plaintiff shows a “stigma” to reputation “plus deprivation of some

additional right or interest.” id. Under this “stigma-plus’ test, when a public

employer “ ‘creates and disseminates a false and defamatory impression about

the employee in connection with his termination,’ “due process applies and the

employee is entitled to a “name-clearing hearing.” Id. (quoted case omitted).

The “stigma” is the “creation and dissemination of a false and defamatory

impression,” and “the termination is the ‘plus.” Id. A plaintiff satisfies the

stigma prong of this test by showing that the allegedly stigmatizing statements

were made publicly and were false. “For government action to infringe the

22

‘reputation, honor, or integrity” of an individual, that government action first

must involve a publication that is substantially and materially false.” Ersek v.

Twp. of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996) (citing Codd v. Velger,

429 U.S. 624, 627-29, 97 S. Ct. 882, 883-85 (1977).

Here, the “stigma” inquiry fails. It is hard to see what the alleged

“falsehood” might consist of. Plaintiff himself reported that he testified falsely at

the suppression hearing. He merely seeks to justify that behavior by blaming

the prosecutor. The Brady Orders were issued, in compliance with MCPO’s

Brady/ Giglio obligations, to alert affected parties of a potential issue with Mr.

Del Turco’s involvement in their matters. Thus, viewing Exhibit D and the 2AC

as a whole, Mr. Del Turco has failed to establish that the statements in the

Brady Orders were false or that the dissemination of them was wrongful.

Accordingly, defendants’ motions to dismiss Mr. Del Turco’s substantive

due process claims are granted.

IV. State Law Claims

Counts 1-9 of the 2AC and its predecessors, although they fail to state a

federal claim, are most naturally read as state-law claims. The complaint was

removed from state court by the defendants based on its citation of provisions

of the U.S. Constitution in some of the laundry-list allegations of Counts 6 and

7. (See DE 1-1 (Notice of removal); DE 1-3 (Original complaint)).? Counts 10-12,

of course, are pure state-law claims, with no federal-law component. Having

? The language of Count 6, for example, is as follows:

[Certain alleged action] constitutes discipline imposed, without due process,

outside of the formal disciplinary process, in contravention of Officer Del

Turco's rights, pursuant to Title 40A, the New Jersey Attorney General's

Guidelines; his due process rights; his administrative due process rights; his

4th Amendment rights; his liberty interests; his property interests; and,

other fundamental rights guaranteed the by the Constitution of the State of

New Jersey, and the Constitution of the United States of America; and, as

such, such discipline is arbitrary, capricious, and, unreasonable.

(DE 1-3 at 9)

23

dismissed all federal claims, I decline to exercise supplemental jurisdiction over

the state law claims that remain. See 28 U.S.C. § 1367.

Counts 1-9, as I extracted from plaintiff's counsel at oral argument, were

actually drafted with a state-court action in lieu of prerogative writs in mind.

See N.J. Ct. R. 4:69-1. These counts allege, not constitutional deprivations, but

“arbitrary” actions by officials in connection with the termination of the

plaintiff's employment. They cite, inter alia, the procedural protections of N.J.

Stat. Ann. Title 40A.

Counts 10 through 12 are pure state-law claims asserted against MCPO,

Seabury, and McNamara. See Count 10 (Fraud and Breach of Fiduciary Duty);

Count 11 (Fraud and Fraud in the Inducement); and Count 12 (Tortious

Interference with Contractual Relations and/or Prospective Economic

Advantage).

Under 28 U.S.C. § 1367(c), the Court has discretion to decline

jurisdiction over remaining state-law claims after all federal claims have been

dismissed from the action. The Third Circuit has held that where the federal

claims that gave the basis for original jurisdiction are dismissed, a “district

court must decline to decide the pendent state claims unless considerations of

judicial economy, convenience, and fairness to the parties provide an

affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d

Cir. 2000) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995)); see Shaffer v. Bd. of Sch. Dirs. of Albert Gallatin Area Sch. Dist., 730

F.2d 910, 912 (3d Cir. 1984) (holding that “pendent jurisdiction should be

declined where the federal claims are no longer viable, absent extraordinary

circumstances’). In short, the presumptive rule is that the state claims shall be

dismissed, unless reasons of economy and fairness dictate otherwise.

Of course, where the case has been substantially litigated, it may bea

proper exercise of discretion to retain it. See Growth Horizons, Inc. v. Delaware

County, Pa., 983 F.2d 1277, 1284-85 (3d Cir. 1993) (remanding for exercise of

discretion as to whether to retain pendent claim, noting that where the district

24

court already heard all evidence necessary to decide the state contract claim, it

might retain jurisdiction). Where, on the other hand, the case is nowhere close

to trial, remand is the proper course. Freund v. Florio, 795 F. Supp. 702, 710

(D.N.J. 1992) (“{A]t this early stage in the litigation, dismissal of the pendent

state claims in a federal forum will result in neither a waste of judicial

resources nor prejudice to the parties.”).

This case is in the early pleading stages. The federal claims are not

substantial (and indeed may never have truly been intended as federal claims

at all). No substantial considerations of fairness or economy weigh in favor of

retaining jurisdiction. I will therefore exercise my discretion to decline the

exercise of supplemental jurisdiction over all remaining state-law claims.§

V. Conclusion

I have dismissed Counts 1-9 for failure to state a federal constitutional

claim. The complaint has been amended twice, the second time in response to

defendants’ arguments on a prior motion to dismiss. It appears that further

amendment may be futile. Still, in an abundance of caution, I will enter the

dismissal of federal claims without prejudice to the submission, within 14

days, of a properly supported motion to again amend the complaint. Any

8 Because this Court lacks jurisdiction over Counts 10-12, I do not reach certain

issues asserted by the defendants. Defendants argue first that the plaintiff failed to file

the required pre-suit notice under the New Jersey Tort Claims Act or the New Jersey

Contractual Liability Act. N.J. Stat. Ann. 59:8, 59:13. Asa result, they say, neither

this court nor any state court would possess subject matter jurisdiction. Defendants

also argue that these counts fail to state a claim, and that the Morris County

Defendants are immune.

Having determine that I lack subject matter jurisdiction, I will not delve any

further into other issues, whether jurisdictional or substantive. See generally Willy v.

Coastal Corp. 503 U.S. 131, 137, 112 S, Ct. 1076, 1080 (1992) (°A final determination

of lack of subject-matter jurisdiction of a case in a federal court, of course, precludes

further adjudication of it.”); Orthopedic Bone Screw Products Liability Litigation v.

Eyster, 132 F.3d 152, 155 (3d Cir. 1997)(‘If a court then determines that it lacks

subject matter jurisdiction, it cannot decide the case on the merits. It has no authority

to do so.”).

25

amended version will be scrutinized closely, not indulgently, for the existence of

a federal claim.

| have dismissed all remaining state-law claims, including Counts 10-12,

for lack of subject matter jurisdiction. Rather than dismiss the state law claims

outright, however, I will exercise my discretion to remand this removed action

to state court, where it was filed. There, if appropriate, the plaintiff may pursue

whatever remains of his state law claims. The remand shall be held in

abeyance, however, for 14 days, to accommodate any potential motion to

amend. An appropriate order follows.

Dated: March 2, 2020

k

Kevin McNulty

United States District Judge

26