# MCGILLVARY v. UNION COUNTY NEW JERSEY

> District Court, D. New Jersey · April 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10268219

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268219

## How later opinions describe it (automated extraction)

- finding “vague assertions” were insufficient to impose Monell liability
- explaining that “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest”
- finding claim time barred and having no occasion to rule on the issue

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CALEB L MCGILLVARY, Civil Action No. 15-8840 (MCA)

Plaintiff,

v. OPINION

UNION COUNTY, NEW JERSEY et al.,

Defendants.

ARLEO, UNITED STATES DISTRICT JUDGE
This matter has been opened to the Court by Plaintiff Caleb McGillvary’s Complaint
asserting violations of his civil rights in connection with the investigation and prosecution of
Plaintiff for the murder of Joseph Galfy, Jr. in May 2013. Presently before the Court are four
separate motions to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6) brought by the Clark Police Department, Clark Police Chief Pedro Matos (“the City
Defendants”) (ECF No. 59), Joseph Cryan, Edward Suter, Union County New Jersey, and Union
County Sheriff’s Office (“the County Defendants”) (ECF No. 61), Andrew M. DellaQuila,
Robert B. Henderson, Johnny Ho, John J. Hoffman, Grace H. Park, Scott M. Peterson, Union
County Prosecutor’s Office, Jose Vendas, William V. Roeder, and J Michael Walker (“the State
Defendants”) (ECF No. 62), and Robert J. Pandina (ECF No. 60)1 For the reasons explained in
this Memorandum Opinion, the Court will grant the motions to dismiss as to all Moving
Defendants.

1 Plaintiff also names in the caption the Philadelphia Police Department and Philadelphia Police
Commissioner Charles H. Ramsey, and identifies several additional Philadelphia police officers
in the Complaint. It is not clear if any of these Defendants were served and none have entered an
appearance in this action.
I. FACTUAL BACKGROUND
a. The Allegations in the Complaint
In the Complaint Plaintiff generally asserts that the City, County, and State Defendants
were involved in the investigation of Joseph Galfy’s (“Galfy”) death and were aware that

Plaintiff claimed that he had been sexually assaulted and drugged by Galfy. See Complaint at ¶¶
1-3. According to the Complaint, Plaintiff was arrested in Philadelphia, Pennsylvania on May
16, 2013, by members of the Philadelphia Police Department and members of the Union County
Prosecutor’s Office were promptly notified. Id. at ¶¶ 4-5.
Assistant Union County Prosecutor Peterson, who reports to Prosecutor Park, along with
Union County Prosecutor’ Office (“UCPO”) Detectives DellaQuila, Henderson, Ho, and Vendas
responded in-person to the Philadelphia Police Department. Detectives Vendas and Ho
interviewed Plaintiff at the Philadelphia Police Department, and Plaintiff reported to them that he
was sexually assaulted and drugged by Galfy. Id. at ¶¶ 6-14. According to the Complaint,
neither Detective informed Plaintiff of his right to a rape care advocate or a forensic medical

examination, and a sexual assault response team was not activated. Id. at ¶¶ 15-17. A sexual
assault forensic evidence collection kit and a toxicology analysis were not performed on
Plaintiff. Id. at ¶¶ 19-20. According to Plaintiff, these Defendants failed to follow the standards
set by the Attorney General of the State of New Jersey and the Attorney General of the State of
Pennsylvania for victims of sexual assault. Id. at ¶¶ 20-25. These Defendants also did not
inform Plaintiff of his right to immediate medical attention or the benefit of evidence collection.
Id. at ¶ 26. Plaintiff explains that evidence of sexual assault is material to a claim of self defense
and would exonerate him for criminal liability in connection with the death of Galfy. Id. at ¶¶
27-28.
Plaintiff next asserts that Defendant Pandina is not a registered nurse or physician and
was contacted by the UCPO to prepare an expert report and to diagnose Plaintiff’s physical and
mental state in the report. According to Plaintiff, Defendant Pandina did not provide care
meeting the standards set by the American College of Emergency Physicians for the Evaluation

and Management of the Sexually Assaulted or Sexually Abused Patients. Id. at ¶¶ 29-33.
Plaintiff further alleges that a sexual assault forensic evidence collection kit and a
toxicology analysis was performed on the deceased Galfy, on May 14, 2013, by a licensed
physician, and this analysis showed that Plaintiff did not sexually assault Galfy. The analysis
also showed evidence of Galfy’s semen and traces of unidentified blood. See id. at ¶¶ 34-39.
Plaintiff asserts that the examination performed on Galfy followed standard procedures for
sexual assault victims, but this procedure was not followed for Plaintiff. See id. at ¶¶ 40-43.
Plaintiff next asserts that “[i]nvestigators” falsely asserted to the media that Plaintiff had
a “a romp” with Galfy. Id. at ¶ 44. Assistant Prosecutor Peterson also told the Grand Jury that
the rape kit performed on Galfy proved that Plaintiff had not been raped, that Plaintiff showed no

signs of being drugged after the incident, contradicting the evidence, including witness reports.
¶¶ Id. at 46-51. Detective Ho testified to the Grand Jury that beer bottles found in Galfy’s
garage were swabbed for analysis when, in fact, Detective Suter fumigated and cleaned the
bottles and all other collected glasses and did not perform any DNA or drug analysis. Id. at ¶¶
52-53. Prosecutor Peterson also intentionally misled the grand jury by stating that “ no semen
was found,” despite the fact that Galfy’s own semen was found. Detective Ho also testified to
the grand jury that no semen was found in the bedroom where Galfy was discovered and where
Plaintiff claims the sexual assault occurred. Id. at ¶¶ 54-58.
Plaintiff asserts that Galfy’s home was searched for evidence by Detective Henderson
and Sheriff Gardner on May 15, 2013, and they photographed and collected evidence from the
home but but failed to collect samples of stains on the carpet in the master bedroom, take the
glasses out of the dishwasher, or collect all the pill bottles in the home so these items could be

analyzed. See id. at ¶¶ 60-78. Detective Ho also falsely testified before the Grand Jury that all
the pill bottles in the home were collected. See id. at ¶ 79.
Plaintiff also asserts that Pandina is engaged in the unauthorized practice of medicine or
psychiatry by providing expert testimony in criminal cases without a license to practice medicine
or psychiatry See id. at ¶¶ 80-98. Plaintiff further asserts that Defendants “enabled” Pandina’s
unauthorized practice of medicine and/or psychiatry and denied Plaintiff due process and equal
protection of the law. Id. at ¶¶ 99-103.
Plaintiff asserts that Defendants denied Plaintiff due process and equal protection of the
law by failing to follow the Attorney General’s standards for providing services to sexual assault
victims. Id. at ¶¶ 104-105. Finally, Plaintiff asserts that the investigation of Galfy’s death and

Plaintiff’s indictment and prosecution for Galfy’s murder were conducted in bad faith in
violation of Plaintiff’s right to due process and equal protection, and that the loss, destruction,
and suppression of evidence has denied Plaintiff the ability to obtain a fair trial. See id. at ¶¶
106-113.
b. Procedural History
Plaintiff’s Complaint was docketed on December 23, 2015. See ECF No. 1. Along with
claims for damages and other forms of equitable relief, Plaintiff’s Complaint seeks to enjoin his
pending state criminal prosecution. See id. at 4. The State Defendants moved to dismiss the
claims for injunctive relief pursuant to Younger v. Harris, 401 U.S. 37, 45 (1971) and sought
dismissal of the remaining claims for damages. In the alternative, the State Defendants asked the
Court to stay the matter pending the outcome of Plaintiff’s criminal proceedings. See ECF Nos.
15.2 Plaintiff opposed the motion. ECF No. 17. On November 16, 2016, this Court granted the
State Defendants’ motion to dismiss Plaintiff’s claims for injunctive relief seeking to enjoin his

criminal prosecution, pursuant to Younger. See ECF No. 42. The Court also granted
Defendants’ motion to stay Plaintiff’s remaining damages claims pending the outcome of his
state court criminal proceedings. See id.
On July 11, 2019, Plaintiff submitted a letter request to reopen this matter. See ECF No.
47. Attached to his letter request is a copy of the Judgment of Conviction showing that he was
convicted of first-degree murder of Joseph Galfy, Jr. on April 24, 2019 following a jury trial.
Plaintiff was sentenced on May 30, 2019 to fifty-seven years in prison subject to the No Early
Release Act (“NERA”). See ECF No. 47, Judgment of Conviction dated May 30, 2019. On June
20, 2019, Plaintiff filed a Notice of Appeal with the New Jersey Appellate Division. ECF No.
59-3, Exhibit B. His appeal is currently pending.

The Court reopened this matter on July 22, 2019, and the instant motions to dismiss
followed. ECF Nos. 59-62.
II. STANDARD OF REVIEW
The State Defendants move to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction and assert they are entitled to sovereign immunity
under the Eleventh Amendment. This motion “may properly be considered a motion to dismiss
for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)” because “the Eleventh

2 The City and County Defendants also moved to dismiss the Complaint. ECF Nos. 10, 40.
Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.”
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996).
In resolving a motion to dismiss for failure to state a claim, under Rule 12(b)(6), “‘courts
accept all factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Zimmerman
v. Corbett, 873 F.3d 414, 417–18 (3d Cir. 2017), cert. denied 138 S. Ct. 2623 (2018); Revell v.
Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010).
As a pro se litigant, Plaintiff is entitled to liberal construction of his complaint. See
Liggon–Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). To survive dismissal
under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)
(internal quotation marks and citation omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id
III. ANALYSIS
The Court has already dismissed Plaintiff’s claims for injunctive relief seeking to enjoin
his prosecution and now liberally construes his remaining claims for relief, which arise under 42
U.S.C. § 1983. Section 1983 provides a civil remedy for the “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. To state a
claim under section 1983, a plaintiff must demonstrate that “some person has deprived him of a
federal right ... [and] that the person who has deprived him of that right acted under color of state
or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); Halsey v. Pfeiffer, 750 F.3d 273,
290 (3d Cir. (2014).
a. Eleventh Amendment Immunity and Personhood Requirement
From the outset the Eleventh Amendment incorporates a general principle of sovereign

immunity which bars citizens from bringing suits for damages against any state in federal court.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100–101 (1984). In general,
Eleventh Amendment immunity extends to state agencies and state officials in their official
capacities, and, in doubtful cases, the Court analyzes several factors to determine whether an
entity is an agency of the State, i.e., whether the State is the real party in interest. See Fitchik v.
New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659-60 (3d Cir. 1989).
Relatedly, a state and its departments are not considered “persons” amenable to suit under
section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 67-70 (1989). Also barred are
section 1983 suits for damages against “governmental entities that are considered ‘arms of the
state’ for Eleventh Amendment purposes,” which are “no different from a suit against the State

itself.” Id. at 70-71. State officials, sued in their official capacities, are likewise not “persons”
subject to a damages suit under section 1983. Will, 491 U.S. at 71 n.10; Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985). On the other hand, a state official sued in his or her personal
capacity is a “person” amenable to suit under section 1983, and does not enjoy Eleventh
Amendment protection. Hafer v. Melo, 502 U.S. 21, 30-31 (1991).
The Third Circuit has held that when a county prosecutor’s office is performing its core
functions of investigating and prosecuting crime, it acts as an arm of the State.3 See, Beightler v.

3 “On the other hand, when county prosecutors are called upon to perform administrative tasks
unrelated to their strictly prosecutorial functions, such as a decision whether to promote an
Office of Essex Cty. Prosecutor, 342 F. App’x. 829, 832 (3d Cir. 2009) (citing Coleman v. Kaye,
87 F.3d 1491, 1505 (3d Cir. 1996); see also Estate of Matthew Mckloskey v. Franklin Township,
2016 WL 4680154, at *3 (D.N.J. Sept. 7, 2016)(collecting cases and finding that a county
prosecutor’s office is not a person under § 1983). Because Plaintiff has sued the Union County

Prosecutor’s Office in connection with his prosecution for Galfy’s death, the Court finds that it
was acting as an arm of the state. For these reasons, the Court will grant with prejudice the
motion to dismiss as to the Union County Prosecutor’s Office. To the extent Plaintiff is suing
State Defendants DellaQuila, Henderson, Ho, Hoffman, Park, Peterson, Vendas, Roeder or
Walker in his or her official capacity for damages, these claims are likewise dismissed with
prejudice.4
b. Municipal Entities and Monell Liability
Plaintiff has also sued the Clark Police Department and the Union County Sheriff’s
Office. In New Jersey, a municipal police department is not a separate legal entity from the
governing municipality. See Groark v. Timek, 989 F. Supp.2d 378, 382 (D.N.J. Nov. 27, 2013)

(citing Franks v. Cape May County, 2010 WL 3614193, at *7 (D.N.J. Sept. 8, 2010)); Drayton v.
Monmouth County Correctional Institution Sheriff’s Department, 2020 WL 207711, at *1
(D.N.J. Jan. 14, 2020). The case law uniformly holds that the proper defendant is the
municipality itself, not the police department. See Jackson v. City of Erie Police Dep’t, 570 F.
App’x 112, 114 (3d Cir. 2014) (“We further agree with the District Court that the police
department was not a proper party to this action. Although local governmental units may

investigator, the county prosecutor in effect acts on behalf of the county that is the situs of his or
her office.” Wright v. State, 169 N.J. 422, 450 (2001) (quoting Coleman, 87 F.3d at 1499).
4 They may remain potentially liable as persons in their individual capacities, however. See
Hafer v. Melo, 502 U.S. 21, 25 (1991); Estate of Lagano v. Bergen Cnty. Prosecutor's Office,
769 F.3d 850, 856 (3d Cir. 2014).
constitute ‘persons’ against whom suit may be lodged under 42 U.S.C. § 1983, a city police
department is a governmental sub-unit that is not distinct from the municipality of which it is a
part.”) (citation omitted). The Court will therefore grant the motion to dismiss with prejudice as
to the Clark Police Department and the Union County Sheriff’s Office, as these entities are not

proper defendants in an action pursuant to § 1983.
The Court next considers whether Plaintiff states a Monell claim against the City of Clark
and/or the County of Union. Municipalities and other local governments can be sued directly
under § 1983 for monetary, declaratory, or injunctive relief where the deprivation resulted from
an official policy or custom. See Monell v. Department of Social Services of City of New York,
436 U.S. 658, 690 (1978). Although a municipality may be liable under 42 U.S.C. § 1983, it
cannot be held liable on a theory of respondeat superior. Id. at 691. To the extent that Plaintiff
asserts violations of his constitutional rights by the City of Clark or the County of Union, he fails
to plead any facts showing that any alleged deprivation of his constitutional rights resulted from
a policy or custom of either of these municipalities.5 See Groman v. Twp. of Manalapan, 47

F.3d 628, 637 (3d Cir. 1995) (finding “vague assertions” were insufficient to impose Monell
liability); Nash v. Kenney, 784 F. App’x. 54, 57 (3d Cir. 2019). As such, the Court grants the
motion to dismiss as to the City of Clark and to County of Union and dismisses these entities
without prejudice.

5 Municipalities like the City of Clark or Union County may be found liable under § 1983 where
“the action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated” by the body’s officers. Id.
at 690. As to custom, municipalities may be sued for “constitutional deprivations visited
pursuant to governmental ‘custom’ even though such a custom has not received formal approval
through the body's official decision making channels.” Id. at 690–91. Here, Plaintiff fails to
provide any facts showing that the City of Clark or the County of Union adopted policies or
widespread customs that caused the harm of which he complains.
c. The Personal Involvement Requirement
It is axiomatic that “[a] defendant in a civil rights action must have personal involvement
in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)(citing Parratt v. Taylor,

451 U.S. 527, 537 n. 3 (1981)); see also Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”). Here, the Court will grant the motions to dismiss without prejudice as to
Clark Police Chief Pedro Matos, Joseph Cryan, Edward Suter, Grace H. Park, Attorney General
John H. Hoffman, William V. Roeder, and J Michael Walker, in their personal capacities, for
lack of sufficient personal involvement in the alleged wrongs.
d. Remaining § 1983 Claims and Defendants
The Court next addresses Plaintiff’s substantive claims for relief against the remaining
Moving Defendants sued in their personal capacities. The exact contours of Plaintiff’s § 1983
claims are unclear but the Court construes the Complaint liberally.

The Court construes Plaintiff to allege that his substantive due process rights were
violated by Defendants’ negligent or reckless investigation into Galfy’s death. According to
Plaintiff, Prosecutor Peterson and Detectives DellaQuila, Henderson, Ho, and Vendas failed to
investigate Plaintiff’s allegations and collect the very evidence that would have established that
Plaintiff acted in self-defense. Detective Henderson and Sheriff Gardner likewise failed to
collect evidence from Galfy’s home that would have supported Plaintiff’s defense that he was
drugged and sexually assaulted by Galfy.
A claim for negligent investigation is not cognizable in a civil rights action. As explained
by the Third Circuit, “negligence by public officials is not actionable as a due process
deprivation of a civil right.” See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (citing
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.1995)). As a general matter,
negligence does not trigger a constitutional violation. See Daniels v. Williams, 474 U.S. 327,
334 (1986); Baker v. McCollan, 443 U.S. 137, 144 (1979). Assuming the conduct alleged

amounts to recklessness, the Third Circuit, in Johnson v. Logan, 721 F. App’x. 205, 208 (3d Cir.
2018), expressed “significant doubts about whether there is an independent substantive due
process right to be free from a reckless investigation.” Likewise, in Geness v. Cox, 902 F.3d
344, 354 n.5 (3d Cir. 2018), the circuit court expressed “doubts . . . as to the viability of such a
claim[.]”6 Id. (finding claim time barred and having no occasion to rule on the issue); see also
Newton v. City of New York, 566 F.Supp.2d 256, 278 (S.D.N.Y. 2008) (“[T]here is no
constitutional right to an adequate investigation.”)
Even if Plaintiff could proceed on a reckless investigation claim under the Fourth
Amendment, see Geness, 902 F.3d at 354 n.5, if Plaintiff were to succeed on his claim that the
evidence Defendants recklessly failed to obtain would exonerate him and establish that he acted

in self-defense, that determination would necessarily impugn the validity of his conviction for
Galfy’s murder. For this reason, Plaintiff’s claim of reckless investigation, to the extent such a
claim is cognizable, is barred by the favorable-termination rule of Heck v. Humphrey, 512 U.S.

6 The Third Circuit further stated that such a claim, if cognizable, could only arise under the
Fourth Amendment. Id. at n5 (citing Manuel v. City of Joliet, Ill, ––– U.S. ––––, 137 S.Ct. 911,
919, 197 L.Ed.2d 312 (2017) (“If the complaint is that a form of legal process resulted in pretrial
detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth
Amendment.”); see also Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009) (“A
plaintiff cannot state a due process claim ‘by combining what are essentially claims for false
arrest under the Fourth Amendment and state law malicious prosecution into a sort of hybrid
substantive due process claim under the Fourteenth Amendment.’” (quoting McCann v.
Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003)).
477 (1994). In Heck, the Supreme Court held that “a prisoner cannot use § 1983 to obtain
damages where success would necessarily imply the unlawfulness of a (not previously
invalidated) conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Because
Plaintiff has not shown that his conviction has been set aside, he cannot bring a claim for

reckless investigation at this time. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016). This
claim is therefore dismissed without prejudice until such time that Plaintiff sets aside his
conviction.
The State Defendants also construe Plaintiff’s Complaint to assert the more familiar
Fourth Amendment claims for malicious prosecution. “To prove malicious prosecution under §
1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the
criminal proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable
cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure
as a consequence of a legal proceeding.”7 Because Plaintiff is unable to establish favorable

termination, he fails to state a claim for malicious prosecution, and the Court will grant the
motion to dismiss with respect to this claim and dismiss this claim without prejudice until such
time that Plaintiff sets aside his conviction.

7 Fabricated evidence claims also require favorable termination. See Baskerville v. City of
Harrisburg, No. 19-420, 2020 WL 108421, at *4 (M.D. Pa. Jan. 9, 2020) (“The Supreme Court
has expressly likened [a fabrication of evidence] claim to malicious prosecution, thus
requiring—as an element—favorable termination of the related criminal proceedings”) (citing
McDonough v. Smith, 588 U.S. ––––, 139 S. Ct. 2149, 2155-59 (2019)); Floyd v. Attorney Gen.
of Pennsylvania, 722 F. App’x 112, 114 (3d Cir. 2018) (“Because Floyd’s malicious prosecution
and fabrication of evidence claims do not accrue until the criminal proceedings have terminated
in Floyd’s favor, and Floyd has not demonstrated as much, they are barred by Heck.”).
Plaintiff also complains that Assistant Prosecutor Peterson presented false and misleading
evidence to the grand jury. When sued in their personal capacities for damages, Prosecutors are
shielded by absolute immunity for actions which are intimately associated with the judicial phase
of the criminal process. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Such activities include

activities undertaken while in court as well as selected out-of-court behavior intimately
associated with the judicial phases of litigation. Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d
Cir. 1992). Prosecutorial activities protected by absolute, as opposed to qualified, immunity
include soliciting false testimony from witnesses in grand jury proceedings and probable cause
hearings. See id. at 465 (citing Burns v. Reed, 500 U.S. 478 (1991)). Even interviews generating
evidence to be presented to a grand jury are absolutely protected. Id. (citing Rose v. Bartle, 871
F.2d 331 (3d Cir. 1989)) (prosecutor’s solicitation of testimony for use in grand jury proceedings
is “encompassed within ‘the preparation necessary to present a case’ and therefore [is]
immunized as involving the prosecutors’ advocacy functions.”) (citation omitted). Because the
prosecutor here engaged in a protected prosecutorial function when he presented the allegedly

false information to the grand jury, he is immune from suit for this claim. For this reason, all §
1983 damages claims against the Assistant Prosecutor Peterson arising from presentation of false
evidence to the grand jury are dismissed with prejudice on the basis of prosecutorial immunity.
Plaintiff also contends that UCPO Detective Ho presented false or misleading evidence to
the grand jury. The Supreme Court has unanimously held that grand jury witnesses, like trial
witnesses, have “absolute immunity from any § 1983 claim based on the witness’ testimony.”
Rehberg v. Paulk, 132 S.Ct. 1497, 1506 (2012); Cope v. Kohler, 2015 WL 3952714, at *5
(D.N.J. Jun. 29, 2015). The Court will therefore dismiss with prejudice the claim against
Defendant Ho arising from his alleged false testimony to the grand jury.
Plaintiff also asserts that Assistant Prosecutor Peterson and Detectives DellaQuila,
Henderson, Ho, and Vendas, who reported to the Philadelphia Police Department following
Plaintiff’s arrest, failed to inform Plaintiff of his right to a rape care advocate and a forensic
medical examination and failed to activate a sexual assault response team. Plaintiff further

complains that a sexual assault forensic evidence collection kit and a toxicology analysis were
not performed on Plaintiff but were performed on the deceased Galfy. According to Plaintiff,
these Defendants failed to follow the standards for victims of sexual assault set by the Attorney
General of the State of New Jersey.
Because Plaintiff appears to assert that he was entitled to certain protections and benefits
provided to sexual assault victims, the Court considers whether he states a procedural due
process claim. In evaluating a procedural due process claim, courts first determine “whether the
asserted individual interests are encompassed within the fourteenth amendment’s protection of
life, liberty, or property.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quotations omitted).
Property interests are “created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of
Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement
to it.” Id. Here, Plaintiff has not pleaded facts showing that he has a legitimate claim of
entitlement to a rape care advocate, a sexual assault forensic evidence collection kit, a toxicology
analysis, or report created by licensed physician or psychologist rather than by Defendant
Pandina. As such, he fails to a state claim for violations of his constitutional right to procedural
due process.
Plaintiff also complains that investigators falsely asserted to the media that Plaintiff had a
“a romp” with Galfy. An individual does not have a protected interest in reputation alone.

Thomas v. Indep. Twp., 463 F.3d 285, 297 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693,
701 (1976)). Instead, “defamation is actionable under 42 U.S.C. § 1983 only if it occurs in the
course of or is accompanied by a change or extinguishment of a right or status guaranteed by
state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing
Paul, 424 U.S. at 701-12, 96 S.Ct. 1155). Accordingly, a plaintiff must plead a “stigma-plus”
claim in his complaint. See Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006)
(explaining that “to make out a due process claim for deprivation of a liberty interest in
reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional
right or interest”). Here, Plaintiff’s claim is foreclosed by the Supreme Court’s decision in Paul
v. Davis. There, the Court stated that a claim of defamation (by a police department that

circulated a flyer imputing criminal behavior to a person) was not a federal claim even if it
would “seriously impair [that person’s] future employment opportunities.” Paul, 424 U.S. at
697. As such, Plaintiff fails to state a claim for relief as to this claim.
Nor has Plaintiff pleaded facts showing an equal protection violation based on the fact
that he was treated differently than Galfy. Generally, “[a] violation of the Equal Protection
Clause may exist when government action discriminates against a “suspect class,” or it interferes
with a “fundamental right.” See Brown v. Borough of Mahaffey, 35 F.3d 846, 850 (3d Cir.
1994). However, where a plaintiff cannot prove that he is a member of a protected class or that
the government has interfered with a fundamental right, he may bring his claim under a “class-
of-one” theory. See Engquist v. Or. Dep't of Agric., 553 U.S. 591, 595 (2008). A claim under
this theory is subjected to a rational basis test and the plaintiff must prove that he was
“intentionally treated differently from others similarly situated.” Id. at 601 (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)); see also Keenan v. City of Phila., 983 F.2d

459, 465 (3d Cir. 1992). Here, Plaintiff fails to show that he is similarly situated to Galfy, who
was the apparent victim of a homicide, and also fails to plead facts showing that the difference in
treatment was intentional discrimination. As such, this claim fails to state a claim for relief.
Finally, the Court will grant the motion to dismiss and dismiss without prejudice all §
1983 claims as to Defendant Pandina.8 Plaintiff asserts that this Defendant is engaged in the
unauthorized practice of medicine or psychiatry, failed to follow standards for treating sexual
assault victims, and prepared a report about Plaintiff for the UCPO, none of which violate the
Constitution. To the extent Plaintiff seeks to assert state law claims for relief against this
Defendant or any of the Defendants, the Court, having dismissed the federal claims, declines
supplemental jurisdiction over any state law claims for relief. See Hedges v. Musco, 204 F.3d

109, 123 (3d Cir. 2000) (“[W]here the claim over which the district court has original
jurisdiction is dismissed before trial, the 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.” (internal quotation marks omitted)).
e. Leave to Amend
In the Third Circuit, the Court must allow leave to amend in civil rights cases regardless
of whether it is requested before dismissing a case for failure to state a claim, unless leave to
amend would be inequitable or futile. Fletcher–Harlee Corp. v. Pote Concrete Contractors,

8 The Court assumes without deciding that this Defendant acted under color of state law.
Inc., 482 F.3d 247, 251 (3d Cir. 2007). Prior to closing this action, the Court will provide
Plaintiff with 30 days to submit an Amended Complaint if he can cure the deficiencies in those
federal claims the Court has dismissed without prejudice.9
IV. CONCLUSION

For the reasons explained in this Opinion, the motions to dismiss are granted as to all
claims and Moving Defendants. Plaintiff is granted leave to amend within 30 days to the extent
he can cure the deficiencies in the claims that have been dismissed without prejudice. An
appropriate Order follows.

Dated: April 30, 2020 /s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
UNITED STATES DISTRICT JUDGE

9 With respect to those claims that are barred by Heck or by the favorable termination rule,
Plaintiff may not bring those claims until he sets aside his conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268219. Public record. Not legal advice.