PHILLIPS v. NEW JERSEY TRANSIT

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARMAINE PHILLIPS, Civil Action No.: 19-13427

Plaintiff,

v.

OPINION

NEW JERSEY TRANSIT, et al.

Defendants.

CECCHI, District Judge.

This matter comes before the Court on two motions to dismiss Plaintiff Charmaine Phillip’s

(“Plaintiff”) Complaint (ECF No. 1-2 (“Compl.”)) pursuant to Federal Rule of Civil Procedure

12(b)(6): (1) Defendant Alexy Ayala’s (“Ayala”) motion to dismiss (ECF No. 9); and (2)

Defendants New Jersey Transit Corporation (“NJ Transit”), Sarah Bernal (“Officer Bernal”), and

Dennis Wells’ (“Sergeant Wells”) (collectively, the “State Defendants”) motion to dismiss (ECF

No. 10). The Court decides this matter without oral argument pursuant to Federal Rule of Civil

Procedure 78(b). For the reasons set forth below, both motions are granted, and the Amended

Complaint is dismissed.

I. BACKGROUND

This case arises out of the filing of an allegedly false report by Defendant Ayala and her

stepson, non-moving Defendant Carlos Bruno (“Bruno”),1 to Defendant NJ Transit’s Police

Department regarding a vehicular incident at or near Newark Penn Station. After receiving the

allegedly false report, Defendant Officer Bernal initiated an investigation into the matter, which

led to the arrest of Plaintiff. Plaintiff asserts that the NJ Transit Police Department’s investigatory

1 While Bruno has not filed a motion to dismiss, he did file a motion to appoint pro bono counsel

on February 14, 2020 (ECF No. 22), which was denied on May 14, 2020 (ECF No. 32).

procedures were flawed, particularly those concerning her identification by Ayala as the culprit of

the crime. Plaintiff was charged with four crimes in state court and spent forty-four days in jail

before she was released on her own recognizance. Plaintiff was then prosecuted and indicted for

the crimes. Before trial, Plaintiff succeeded on a motion to suppress out-of-court and in-court

identifications, and the prosecutor subsequently dropped all charges against her. In the instant

action, Plaintiff asserts that Ayala, Bruno, and the officers involved in her investigation engaged

in malicious prosecution, but she has failed to overcome the presumption of probable cause

afforded by the grand jury indictment. Plaintiff’s other subsidiary claims suffer from pleading

deficiencies.

a) Factual Background

The following facts are accepted as true for purposes of the instant Motion. On July 27,

2015, Plaintiff and her non-party husband were departing Newark Penn Station when Ayala

walked up to their vehicle and accused them of striking her automobile. Id. at 3, ¶ 3. Plaintiff

alleges that “[a]t no time did their vehicle make any contact with any other vehicle at or near

Newark Penn Station.” Id. Plaintiff and her husband then drove home. Id.

Thereafter, Ayala and her stepson Bruno appeared at the NJ Transit Police Department and

reported that “[P]laintiff’s vehicle had struck [Ayala’s] vehicle and left the scene and also that []

[P]laintiff pointed a handgun at [Ayala] and threatened to shoot her.” Id. at 4, ¶¶ 4, 6. Ayala

provided photographs that she had taken of Plaintiff’s vehicle and the license plate to Defendant

Officer Bernal (a police officer employed by Defendant NJ Transit) and Officer Bernal’s

supervisor, Sergeant Wells. Id. at ¶ 5. She also provided a written statement to Officer Bernal. Id.

at ¶ 7. Officer Bernal ran the license plate number of the vehicle, which Ayala had provided, and

showed Ayala Plaintiff’s driver’s license photo before Ayala had identified Plaintiff as the

perpetrator. Id. at ¶ 8. Based on this information, unnamed members of the NJ Transit Police

Department went to Plaintiff’s home and arrested her and her husband without a warrant. Id. at ¶

9. Plaintiff maintained her innocence and no weapon was ever recovered. Id. at 3, ¶ 3; id. at 5, ¶

15.

Following the arrest, Officer Bernal brought Ayala to the scene to make an identification.

Id. at 4, ¶ 10. Plaintiff asserts that Bernal did not follow the proper protocol for an identification

by, for example, bringing out her and her husband in handcuffs. Id. at ¶ 11. At the scene, Ayala

identified Plaintiff as the person who had pointed a gun at her. Id. at 5, ¶ 12. On July 27, 2015,

Plaintiff was charged with aggravated assault, possession of a handgun used to threaten another,

possession of a handgun without a permit and obstruction of justice. Id. at ¶ 17. She was

transferred to the Essex County Jail the next day. Id. at ¶ 18. Initially, Plaintiff was unable to post

bail and she remained incarcerated at the Essex County Jail for forty-four days. Id. at ¶ 19. Bail

was subsequently reduced upon motion by Plaintiff. Id. at ¶ 20.

After bail was reduced, Plaintiff was released on her own recognizance on September 19,

2015 and was prosecuted for the next eighteen months. Id. at ¶¶ 20–21. On October 22, 2015, a

grand jury indicted Plaintiff on four counts: fourth degree aggravated assault, second degree

unlawful possession of a weapon, second-degree possession of a weapon for an unlawful purpose,

and fourth degree obstruction of the administration of law. ECF No. 10-4. Plaintiff subsequently

filed a motion to suppress an out-of-court and in-court identification. Compl. at 6, ¶ 22. On March

1, 2017, a Wade hearing on the motion to suppress was conducted, during which Bernal and Ayala

testified on behalf of the State. Id. Plaintiff’s motion to suppress was granted on March 6, 2017.

Id. at ¶ 23. The Complaint alleges that the state court found that: NJ Transit Police procedures

were flawed, Bernal’s testimony was not credible, the show-up identification was impermissibly

suggestive, the officers failed to properly record the identification, and the victim had limited

opportunity to observe the perpetrators. Id. at ¶ 23. On March 10, 2017, all charges against the

Plaintiff were dismissed by motion of the prosecutor. Id. at ¶ 24.

Plaintiff alleges that, as a result of the Defendants’ actions, in addition to being unjustly

detained, she suffered “emotional distress and anxiety; the loss of her employment and other

economic harm; and the temporary loss of custody of her sons.” Id. at ¶ 26.

b) Procedural Background

On June 5, 2019, Plaintiff filed the instant Complaint against the State Defendants, Ayala,

and Bruno. ECF No. 1-2. 2 The Complaint asserts seven causes of action: malicious prosecution

against all Defendants (Count I); Monell liability against the State Defendants (Count II);

violations of the New Jersey Civil Rights Act (the “NJCRA”), N.J.S.A. § 10:6-1, et seq. and the

New Jersey State Constitution, Article I, ¶¶ 5 & 7 against the State Defendants (Count III);

discrimination in violation of New Jersey’s Law Against Discrimination (the “NJLAD”), N.J.S.A.

§ 10:5-1, et seq. against the State Defendants (Count IV); abuse of process against Ayala and

Bruno (Count V); intentional and/or negligent infliction of emotional distress against all

Defendants (Count VI); and damages under New Jersey’s Punitive Damages Act, N.J.S.A. §

2A:15-5.9, et seq. against Officer Bernal, Sergeant Wells, Ayala, and Bruno (Count VII). Id.; ECF

30.3

2 On May 1, 2020, the parties entered a partial stipulation of dismissal; however, all counts remain

as to at least one defendant. ECF No. 30. The counts remaining as to NJ Transit are Counts I, II,

III, IV, and VI; the counts remaining as to Officer Bernal and Sergeant Wells are Counts I, II, III,

IV, VI, and VII; and the counts remaining as to Ayala and Bruno are Counts I, V, VI, and VII. See

id. The Court will not address any arguments in the instant motions to dismiss that correspond to

a dismissed claim, as they are rendered moot.

3 Each count was originally asserted against all Defendants but, after the partial stipulation of

dismissal (ECF 30), the counts are now limited to certain Defendants.

On October 30, 2019, Ayala filed the instant motion to dismiss arguing that Plaintiff has

failed to state a claim against her under Counts I, V, VI, and VII because there are insufficient

facts pleaded to support a cause of action for malicious prosecution, abuse of process, and

intentional or negligent infliction of emotional distress. ECF No. 9-1. On November 1, 2019, the

State Defendants filed the instant motion to dismiss arguing that Plaintiff has failed to state a claim

against them under Counts I, II, III, IV, VI, and VII because: (1) they are entitled to sovereign

immunity from the section 1983 and NJCRA claims (ECF No. 10-7 at 13–15; see ECF No. 13 at

2–3); (2) Sergeant Wells is entitled to qualified immunity from the section 1983 and NJCRA

claims (ECF No. 10-7 at 27–30); (3) the State Defendants are not amenable to suit under section

1983, Monell, and the NJCRA; (id. at 10–13, 15); (4) there are insufficient allegations to support

a cause of action for malicious prosecution or a violation of the NJCRA, the New Jersey state

Constitution, or the NJLAD (ECF No. 10-7 at 8–10, 15–18); and (5) Plaintiff did not file a notice

of tort claim under the New Jersey Tort Claims Act (the “NJTCA”),4 which bars certain claims––

violation of the NJCRA, the New Jersey Constitution, and intentional and negligent infliction of

emotional distress––and punitive damages (id. at 20–27, 33).

On December 2, 2019, Plaintiff filed an opposition to Ayala’s and the State Defendants’

motions to dismiss, arguing that: (1) she has alleged sufficient facts to support a cause of action

for malicious prosecution (ECF No. 12 (“Opp.”) at 8–15); (2) the State Defendants are amenable

to suit under section 1983 and are not entitled to sovereign immunity (id. at 15–17); (3) qualified

immunity should be denied (id. at 17–18); and (4) Ayala’s and the State Defendants’ motions to

dismiss all remaining claims are premature (id. at 18). Plaintiff did not address the State

4 In New Jersey, any claim against a public entity or a public employee relating to a cause of action

for personal injury “shall be presented . . . not later than the 90th day after accrual of the cause of

action.” N.J. Stat. Ann. § 59:8-8 (“notice of tort claim”).

Defendants’ arguments with regard to the NJTCA’s requirement to file a notice of tort claim. See

generally id. On December 6, 2019, the State Defendants filed a reply in further support of their

motion to dismiss. ECF No. 13.5

On August 27, 2020, the Court entered an Order to Show Cause directing Plaintiff to “show

cause as to why Counts I–II and VI–VII of the Complaint should not be dismissed as to the State

Defendants for failure to file a notice of tort claim.” ECF No. 36. Plaintiff conceded that she did

not file a notice of tort claim and that her negligent infliction of emotional distress claim under

Count VI should be dismissed as to the State Defendants. Id. at 1, 3. Plaintiff argued that her

malicious prosecution, section 1983, and intentional infliction of emotional distress claims are not

subject to the NJTCA’s notice requirements and likewise, punitive damages may be obtained

despite a failure to provide notice. Id. at 1–3.

II. LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),

it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-

pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of

the non-moving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions . . . will not do.’ Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

5 On December 17, 2019, the Court entered an Order (ECF No. 15) granting Ayala’s request (ECF

No. 14) to adjourn her reply by thirty days and thus setting a deadline for the reply of January 15,

2020. Ayala did not file a reply thereafter.

Iqbal, 556 U.S. at 678 (citations omitted). However, “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, when reviewing complaints for failure to state a claim, district courts should engage in a

two-part analysis: “First, the factual and legal elements of a claim should be separated . . . .

Second, a District Court must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,

578 F.3d 203, 210–11 (3d Cir. 2009) (citations omitted).6

III. DISCUSSION

After considering the arguments for and against dismissal, the Court finds that the

Complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

a) Count I: Malicious Prosecution (asserted against all Defendants)

In Count I of the Complaint, Plaintiff alleges that all Defendants maliciously initiated a

criminal prosecution against her even though she “had not committed any infraction to legally

justify her arrest nor did there exist sufficient facts for a finding of probable cause.” Compl. at 7,

¶¶ 2–3, 5. Plaintiff specifically alleges that Officer Bernal and Sergeant Wells “acted under the

color of state law” and in “violation[] of [P]laintiff’s clearly established constitutional rights,”

which leads the Court to construe her malicious prosecution claim against the State Defendants as

a section 1983 claim. See id. at ¶ 6; 42 U.S.C. § 1983 (“Every person who, under color of [law]

subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

6 When assessing a motion to dismiss under Rule 12(b)(6), this Court is limited to considering the

allegations in the complaint, exhibits attached to the complaint, matters of public record, and

indisputably authentic documents on which a plaintiff’s claims are based. Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

injured.”); Woodyard v. Cty. of Essex, 514 Fed. Appx. 177, 180 (3d Cir. 2013) (claims of

constitutional violations against state actors must be brought pursuant to section 1983). Plaintiff’s

malicious prosecution claim against Ayala and Bruno is brought pursuant to New Jersey state

common law. Compl. at ¶ 7. For the reasons set forth below, Count I is dismissed.

1. Sovereign Immunity

First, the Court addresses the State Defendants’ argument that they are entitled to sovereign

immunity from the section 1983 claim. ECF No. 13 at 2–3. The Eleventh Amendment to the

United States Constitution provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. The Supreme Court has “extended the Eleventh Amendment’s reach to suits

by in-state plaintiffs, thereby barring all private suits against non-consenting States in federal

court.” Lombardo v. Pa., Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (emphasis

omitted) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)). The Eleventh Amendment also

immunizes “those entities that are so intertwined with [the state] as to render them ‘arms of the

state.’” Karns v. Shanahan, 879 F.3d 504, 512–13 (3d Cir. 2018) (citing Bowers v. Nat’l Collegiate

Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007), amended on reh’g (Mar. 8, 2007)). Courts

examine three factors to determine whether an entity is an ‘arm of the state’: “(1) whether the

payment of the judgment would come from the state; (2) what status the entity has under state law;

and (3) what degree of autonomy the entity has.” Bowers, 475 F.3d at 546.

In Karns, the Third Circuit analyzed these three factors to determine whether NJ Transit

qualified as an arm of the state for the purposes of sovereign immunity against a section 1983

claim. 879 F.3d at 513–20. The Karns court found that the first factor regarding payment of the

judgment did not favor finding sovereign immunity because New Jersey is under no obligation to

reimburse NJ Transit for its judgments and because NJ Transit “concede[d] that it is not entirely

reliant on state funds but rather that it receives a ‘combination of federal, state, and local funds’ to

balance its budget.” Id. at 516. However, the second factor, status under state law, “strongly

favor[ed]” finding sovereign immunity because NJ Transit is part of New Jersey’s executive

branch, “New Jersey’s statutes consider it an instrumentality of the State,” its transit officers are

vested with state police powers, and New Jersey state caselaw regards it as an agency of the state.

Id. at 517–18. For the third factor, “autonomy of the entity,” New Jersey’s “fairly ‘substantial

control’ over NJ Transit counseled in favor of according it Eleventh Amendment immunity.” Id.

at 518. After balancing the three factors, the Third Circuit held that NJ Transit qualified as an arm

of the state entitled to Eleventh Amendment immunity, which in turn functions as an absolute bar

to any section 1983 claims against NJ Transit and NJ Transit officers acting in their official

capacities. Karns, 879 F.3d at 519; see Kneisser v. McInerney, No. 15-07043, 2018 WL 1586033,

at *12 (D.N.J. Mar. 30, 2018).

Notwithstanding Karns, Plaintiff argues (Opp. at 15) that NJ Transit may not assert

sovereign immunity in this action in light of recent legislation referenced in Robinson v. New

Jersey Transit Rail Operations, Inc., 776 F. App’x 99, 100 (3d Cir. 2019). In Robinson, 776 F.

App’x at 100, the Third Circuit held that NJ Transit “may not assert sovereign immunity as a

defense to claims arising under certain federal statutes, including FELA [the Federal Employers’

Liability Act],” because of the passage of the New Jersey Transit Corporation Employee Protection

Act (the “NJ Transit Employee Act”), N.J. Stat. Ann. § 27:25-24.1, 24.2. The NJ Transit Employee

Act states that NJ Transit and its subsidiaries cannot assert “any defense of jurisdictional or

substantive sovereign immunity with respect to any claim or cause of action arising under the

‘Federal Employers’ Liability Act’ (45 U.S.C. s.51 et seq.), the ‘Railway Labor Act’ (45 U.S.C.

s.151 et seq.), the ‘Railroad Retirement Act of 1974’ (45 U.S.C. s.231 et seq.), the ‘Railroad

Retirement Tax Act’ (26 U.S.C. s.3201 et seq.), the ‘Railroad Unemployment Insurance Act’ (45

U.S.C. s.351 et seq.), the ‘Federal Railroad Safety Act’ (49 U.S.C. s.20101 et seq.), and 49 C.F.R.

parts 200-272.” N.J. Stat. Ann. § 27:25-24.2.

Plaintiff’s argument is unpersuasive. Unlike the plaintiff in Robinson, Plaintiff herein does

not assert any claims arising under the aforementioned statutes or regulations, and as such, the NJ

Transit Employee Act is inapplicable. See id.; Compl. Moreover, Plaintiff does not argue that NJ

Transit waived its sovereign immunity or consented to suit under section 1983. See Opp. at 12;

M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335, 345 (3d Cir.

2003) (waiver of Eleventh Amendment immunity will be found “only where the state’s consent is

stated by the most express language or by such overwhelming implications from the text as [will]

leave no room for any other reasonable construction.”) (alteration in original) (internal quotation

marks omitted); see also Allen v. New Jersey State Police, 974 F.3d 497, 506 (3d Cir. 2020)

(finding that the NJTCA “does not constitute waiver of immunity from suit in federal court; the

statute reflects a limited waiver only of the State’s immunity from suit in state court”).

Accordingly, NJ Transit is entitled to sovereign immunity and any section 1983 claims against it

are dismissed. See Allen, 974 F.3d at 506 (affirming dismissal of malicious prosecution claim on

the basis of Eleventh Amendment immunity where state agency defendant was an arm of the state);

Karns, 879 F.3d at 519.

The same conclusion applies to the section 1983 claim against Officer Bernal and Sergeant

Wells to the extent that they are being sued in their official capacities as officers of NJ Transit. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his

or her official capacity is not a suit against the official but rather is a suit against the official's

office. As such, it is no different from a suit against the State itself.”) (internal citation

omitted); Allen, 974 F.3d at 506; Karns, 879 F.3d at 519. However, because Plaintiff also brings

his section 1983 claims against Officer Bernal and Sergeant Wells in their individual capacities,

that portion of the claim may proceed. See Compl. at 2, ¶¶ 3–4 (alleging that Officer Bernal and

Sergeant Wells are being sued individually and in their official capacities).

2. Amenability to Suit Under Section 1983

Next, setting aside the issue of immunity, the Court will analyze whether the State

Defendants are amenable to suit under section 1983 and if so, whether Plaintiff has stated a claim

for a violation of section 1983 under a malicious prosecution theory.7

A plaintiff seeking relief under section 1983 must establish that the individual or entity who

committed the constitutional violation is a “person” for the purposes of section 1983. 42 U.S.C. §

1983; see Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1172 (3d Cir.

1997). “States or governmental entities that are considered ‘arms of the State’ for Eleventh

Amendment purposes” are not “persons” under section 1983. Will v. Mich. Dep’t of State Police,

491 U.S. 58, 70 (1989); see Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365

(“Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh

Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.”).

As discussed above, NJ Transit is an arm of the state. Therefore, it is not a “person” under section

1983 and is not amenable to suit. Karns, 879 F.3d at 519.

By contrast, the Court finds that Officer Bernal and Sergeant Wells are amenable to suit

under section 1983 in their individual capacities. An individual named as a defendant in

his personal capacity is amenable to suit as a “person.” Est. of Lagano v. Bergen Cty. Prosecutor's

Off., 769 F.3d 850, 856 (3d Cir. 2014). It does not matter that the individual is a government

7 See Karns, 879 F.3d at 519, n. 6 (“We emphasize that the Eleventh Amendment and §

1983 determinations are ‘analytically distinct,’ although sometimes overlapping) (quoting Estate

of Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850, 857 (3d Cir. 2014)).

official, or that the acts for which they are being sued are official acts, because their amenability

to suit flows solely from the personal capacity in which they are being sued. Hafer v. Melo, 502

U.S. 21, 27–28 (1991); Lagano, 769 F.3d at 856; Richardson v. New Jersey, No. 16-135, 2019 WL

6130870, at *5 (D.N.J. Nov. 18, 2019). Therefore, despite being state officials sued for their

official acts, Officer Bernal and Sergeant Wells are amenable to suit under section 1983 because

they are also being sued in their personal capacities. See Compl. at 2, ¶¶ 3–4; Lagano, 769 F.3d at

856; Richardson, 2019 WL 6130870, at *5.

3. Prima Facie Elements of a Malicious Prosecution Claim

Having concluded that Defendants Officer Bernal and Sergeant Wells are amenable to suit

under section 1983 in their personal capacities, the Court must next determine whether the

Complaint states a claim for malicious prosecution. To state a claim

for malicious prosecution brought under section 1983, a plaintiff must allege that: “(1) the

defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff’s favor;

(3) the proceeding was initiated without probable cause; (4) the defendant 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.” Kossler v.

Crisanti, 564 F.3d 181. 186 (3d Cir. 2009) (en banc) (internal quotation marks omitted). The first

four elements listed above also comprise the New Jersey common law tort of malicious

prosecution. Allen v. N.J. State Police, No. 16-1660, 2017 WL 5714707, at *6 (D.N.J. Nov. 28,

2017); Wilson v. N.J. State Police, No. 04–1523, 2006 WL 2358349, at *9 (D.N.J. Aug. 15, 2006).

Here, Plaintiff’s section 1983 and common law malicious prosecution claims must be dismissed

because she has failed to meet the third element.8

8 The State Defendants and Ayala do not appear to contest that the first two elements of a malicious

prosecution claim are satisfied here, as Plaintiff has alleged that Officer Bernal, Sergeant Wells,

For the third element of both a section 1983 and common law action for malicious

prosecution, a grand jury indictment constitutes prima facie evidence of probable cause. Rose v.

Bartle, 871 F.2d 331, 352 (3d Cir. 1989). This presumption of probable cause can be overcome

only if the plaintiff sufficiently alleges that the indictment was procured by “fraud, perjury or other

corrupt means.” Id.; see Mobilio v. Dep’t of L. & Pub. Safety of New Jersey, No. 07-3945, 2008

WL 2704826 (D.N.J. July 7, 2008) (applying Rose standard to malicious prosecution claims under

both § 1983 and New Jersey common law). In Rose, the Third Circuit affirmed a Rule 12(b)(6)

dismissal of the plaintiff’s section 1983 malicious prosecution claim, even though the plaintiff

alleged that the defendants committed perjury in connection with the grand jury indictment,

because he did not allege any specific instances of witnesses perjuring themselves or any

substantive perjured testimony. Id. at 353–54. Therefore, under Rose, to overcome the

presumption of probable cause at the motion to dismiss stage, a plaintiff must allege “specific

instances of fraud, perjury, or corrupt means to procure the grand jury indictment.” Liberty Bell

Temple III v. Trenton City Police Dep’t, No. 16-1339, 2019 WL 4750836, at *22 (D.N.J. Sept. 30,

2019) (dismissing plaintiff’s malicious prosecution claim despite allegations that the purpose of

his charges was to silence his voice and close his business because the allegations did not “rise to

the level of plausibly asserting corruption or fraud in the grand jury presentment”).9

Here, Plaintiff concedes that her indictment by a federal grand jury creates a presumption

of probable cause. Opp. at 12–13. Although Plaintiff alleges improprieties with regard to the

and NJ Transit initiated a criminal proceeding against her and that the charges were subsequently

dropped. See ECF No. 9-1 at 4; ECF No. 10-7 at 8–10.

9 See also Mobilio, 2008 WL 2704826, at *5 (plaintiff’s allegations that defendant police office

“fabricated and suppressed evidence in order to obtain an arrest warrant and initiate a criminal

proceeding against [the] [p]laintiff” were sufficient to overcome presumption of probable cause

afforded by grand jury indictment).

investigation initiated against her (see Compl. at 4, ¶¶ 8, 11) and argues that the probable cause

for arrest was based on allegedly flawed investigatory procedures (Opp. at 12–13), she does not

allege any specific instances of fraud, perjury, or corruption in the grand jury presentment (see

generally Compl.). Thus, Plaintiff has failed to rebut the prima facie presumption of probable

cause established by the indictment and failed to satisfy the third element. See Rose, 871 F.2d at

352–54; Liberty Bell Temple III, 2019 WL 4750836, at *22; Falat v. Cty. of Hunterdon, No. A-

2479-15T1, 2018 WL 3554139 (N.J. Super. Ct. App. Div. July 25, 2018) (affirming dismissal of

common law malicious prosecution for failure to state a claim because plaintiff did not

demonstrate a lack of probable cause sufficient to overcome the grand jury indictment)

Accordingly, Count I is dismissed as to Ayala, Bruno,10 and the State Defendants. See

Liberty Bell Temple III, 2019 WL 4750836, at *22; Falat, 2018 WL 3554139.11

10 The Court sua sponte dismisses Count II as to Bruno because the allegations against him are

substantially similar to the allegations against Ayala, dismissal involves the same legal theory, and

Plaintiff has had the opportunity to address the deficiency of her pleading in her opposition to the

motions to dismiss. See Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990) (stating that “there are

times when a court may sua sponte raise the issue of the deficiency of a pleading under 12(b)(6)

provided that the litigant has had the opportunity to address the issue either orally or in writing”);

Seawright v. Greenberg, No. 05-2751, 2005 WL 2877712, at *4 (E.D. Pa. Nov. 2, 2005), aff’d, 233

F. App’x 145 (3d Cir. 2007) (sua sponte dismissing complaint against “[a]ll [d]efendants who have

failed to respond [to the complaint]” because the same legal theory applied to them as raised in

other defendants’ motion to dismiss); Corporate Aviation Concepts, Inc. v. Multi-Service Aviation

Corp., No. 03-3020, 2004 U.S. Dist. LEXIS 17154, at *2 n. 1 (E.D. Pa. Aug. 25, 2004)

(sua sponte dismissing a counterclaim where a defendant counterclaimed against two plaintiffs,

only one plaintiff moved to dismiss the counterclaim, and both counterclaims involved

the same factual allegations, the same parties, and the same legal theories).

11 As the Court finds a lack of probable cause here, it need not address Ayala’s secondary argument

that the malicious prosecution claim asserted against her must be dismissed because the fourth

factor for a malicious prosecution is not satisfied. ECF No. 9-1 at 4; see Lind v. Schmid, 67 N.J.

255, 262 (1975) (the “essence of the [malicious prosecution] cause of action is lack of probable

cause”).

b) Count II: Monell Liability (asserted against the State Defendants)

In Count II, Plaintiff asserts that the State Defendants are subject to Monell liability12 under

section 1983 because NJ Transit, through its police department, developed and maintained

practices that were indifferent to the protection of constitutional rights, and which caused a

violation of Plaintiff’s constitutional rights. Compl. at 8, ¶ 2. Specifically, Plaintiff alleges that NJ

Transit “failed to adequately and properly supervise and train its employees in various aspects of

law enforcement, criminal procedure and substance,” and condoned the violation of civil rights.

Id. at ¶¶ 3–4.

First, the Court dismisses Count II as to Officer Bernal and Sergeant Wells because only

government entities are subject to Monell liability. See Widmaier v. City of Newark, No. 16-2533,

2019 WL 1895087, at *4 (D.N.J. Apr. 29, 2019) (dismissing with prejudice Monell claim against

individual defendants because “Monell liability . . . pertains to government entities not

individuals.”) (citing A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d

Cir. 2004)). Secondly, the Court dismisses Count II as to NJ Transit because, as explained supra

Section III(a), it is entitled to sovereign immunity against section 1983 claims and is not amenable

to suit under section 1983.

c) Count III: Violation of the New Jersey Civil Rights Act and the New Jersey

Constitution (asserted against the State Defendants)

In Count III, Plaintiff asserts a violation of the NJCRA and Article I, paragraphs 5 and 7

of the New Jersey Constitution. Compl. at 9. She specifically alleges a deprivation of her

substantive due process and equal protection rights based on the alleged malicious prosecution

against her. Id. at ¶¶ 1–6. The New Jersey Constitution, Article 1, ¶ 5 states in relevant part, “No

12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) governs the liability of municipalities under

section 1983.

person shall be . . . discriminated against in the exercise of any civil or military right, . . . because

of religious principles, race, color, ancestry or national origin.” The New Jersey Constitution,

Article 1, ¶ 7 states in relevant part, “The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” The

NJCRA, in turn, provides a cause of action for violations of civil rights secured under federal and

state law; it was modeled after, and is analogous to, section 1983. Pettit v. New Jersey, No. 09-

3735, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011). Thus, courts often analyze the sufficiency

of the NJCRA and New Jersey constitutional claims––particularly malicious prosecution claims

brought under those provisions––through the same lens as a section 1983 claim. See Coles v.

Carlini, 162 F. Supp. 3d 380, 404 (D.N.J. 2015); Lucia v. Carroll, No. 12-3787, 2014 WL

1767527, at *5 (D.N.J. May 2, 2014) (finding that the analysis for plaintiff’s N.J. Const. art. I ¶ 7

malicious prosecution claim was the same as the section 1983 claims); Chapman v. New Jersey,

No. 08-4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed

the NJCRA in terms nearly identical to its federal counterpart”).

Accordingly, because the Court has dismissed Plaintiff’s malicious prosecution claim

under section 1983, see supra Section III(a), the Court will dismiss Plaintiff’s malicious

prosecution claim under the NJCRA and N.J. Const. art. I ¶¶ 5, 7 for the same reasons. See Carter

v. Red Bank Borough, No. 18-13537, 2019 WL 6699456, at *2 (D.N.J. Dec. 9, 2019) (“Even if

Plaintiff brings his claim under the NJCRA, the Court reaches the same decision to dismiss

Plaintiff’s malicious prosecution claim [as] Courts in this district have construed and interpreted

the NJCRA analogously to § 1983.”); Lucia v. Carroll, No. 12–3787, 2014 WL 1767527, at *3–5

(D.N.J. May 2, 2014) (granting dismissal in defendant officer’s favor on section 1983 malicious

prosecution claim on the grounds that officer had probable cause to arrest and holding that because

the analysis for plaintiff's corresponding claims under N.J. Const. art. I ¶ 7 and the NJCRA would

be the same, the officer was entitled to dismissal on those claims as well); Monroe v. City of

Hoboken, No. 11–2556, 2012 WL 1191177, at *11 (D.N.J. Apr. 10, 2012) (noting that “the Court’s

analysis on the § 1983 claims applies to plaintiff’s claims under the NJCRA” and dismissing

plaintiff’s malicious prosecution claims).13

d) Count IV: New Jersey Law Against Discrimination (asserted against the State

Defendants)

In Count IV, Plaintiff asserts that the State Defendants violated the NJLAD, which

prohibits discrimination in a place of public accommodation. Specifically, the NJLAD makes it

unlawful “[f]or any owner, lessee, proprietor, manager, superintendent, agent, or employee of any

place of public accommodation directly or indirectly to refuse, withhold from or deny to any person

any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against

any person in the furnishing thereof . . . on account of the race . . . of such person . . .” N.J. Stat.

Ann. § 10:5-12(f)(1). “To state a claim under the NJLAD for discrimination by a place of public

accommodation, a Plaintiff must, (1) ‘demonstrate that she is a member of a protected class’; (2)

must ‘show that the defendant’s actions were motivated by discrimination’; and (3) must

demonstrate that ‘others not within the protected class did not suffer similar adverse . . . actions.’”

Florentino v. City of Newark, No. 19-21055, 2020 WL 5105291, at *14 (D.N.J. Aug. 31, 2020)

13 The State Defendants also argue that a claim for malicious prosecution under New Jersey law

must be brought under common law, meaning it is not a violation of the NJCRA or the New Jersey

Constitution. ECF No. 10-7 at 20–27. However, the State Defendants have cited only one state

court case in support of this proposition, Falat v. Cty. of Hunterdon, which is not compelling

because the plaintiffs therein conceded to dismissal of their NJCRA malicious prosecution claim.

No. A-2479-15T1, 2018 N.J. Super. Unpub. LEXIS 1784, *17–*18 (N.J. Super. Ct. App. Div. Jul.

25, 2018). Furthermore, Sergeant Wells argues that, even if there were a violation of Plaintiff’s

constitutional rights, all section 1983 and NJCRA claims against him must be dismissed on the

basis of qualified immunity. ECF No. 10-7 at 27–30. The Court need not reach this alternative

argument because both the section 1983 and NJCRA claims are being dismissed for failure to state

a claim. See Jones v. Walsh, No. 15-2629, 2018 WL 1203472, at *6 (D.N.J. Mar. 8, 2018) (“As

all claims are being dismissed for failure to state a claim, the Court need not reach [the

defendant]’s arguments regarding qualified immunity.”).

(quoting Partovi v. Felician Coll., No. A-1961-09T1, 2011 WL 867275, at *7–8 (N.J. Super. Ct.

App. Div. Mar. 15, 2011)). Plaintiff has demonstrated that she is a member of a protected class

by alleging that she is African-American. Compl. at 2, ¶ 1. However, she has failed to satisfy the

second and third elements.

To meet the second element, Plaintiff must allege facts sufficient to create an inference that

the State Defendants’ actions were motivated by racial discrimination. See Leanne Wright-Phillips,

2021 WL 1221111, at *12 (Black plaintiff’s allegations that defendant flight attendant refused to

provide routine medical care to him despite caring for a white passenger, created a hostile

environment on-board, and held animus against Plaintiff, sufficed to meet the third element

because a “reader of the [] [c]omplaint could plausibly infer that this refusal [to provide medical

care] was racially motivated”). Conclusory allegations of discrimination are insufficient.

Florentino v. City of Newark, 2020 WL 5105291, at *14 (plaintiff’s allegations that she was

unlawfully arrested because of her protected status and that the defendant officers taunted her with

political comments were “too conclusory to sustain a claim for discrimination”); Partovi v.

Felician Coll., No. A-1961-09T1, 2011 WL 867275, at *7–8 (N.J. Super. Ct. App. Div. Mar. 15,

2011).

Here, Plaintiff makes only one conclusory allegation of discrimination—that the State

Defendants arrested her “without any basis for probable cause and then maliciously prosecut[ed]

her, due solely to her race or national origin.” Compl. at 10, ¶ 4. However, Plaintiff does not allege

any facts to support her assertion that Officer Wells, Sergeant Bernal, or any other NJ Transit

police officer, investigated or prosecuted Plaintiff based on her race or national origin. Rather,

Plaintiff alleges that Officer Wells and Sergeant Bernal initiated their investigation based on the

allegedly false reports provided by Ayala and Bruno, which indicated that Plaintiff had hit Ayala’s

vehicle, threatened Ayala with a handgun, and then fled the scene. Compl. at 4, ¶¶ 4–7. Moreover,

in her opposition, Plaintiff does not address the State Defendants’ argument that her sole

conclusory allegation of discrimination is insufficient to survive Rule 12(b)(6). See Opp.

Therefore, Plaintiff has failed to satisfy the second element. See Florentino, 2020 WL 5105291, at

*14.

Plaintiff has also failed to meet the third element, as she has not alleged sufficient facts to

indicate that others outside of her protected class received different treatment. Accordingly,

Plaintiff’s NJLAD claim for discrimination by a place of public accommodation (Count IV) is

dismissed as to the State Defendants. See Florentino v. City of Newark, 2020 WL 5105291, at *14;

Partovi, 2011 WL 867275, at *8 (affirming dismissal of plaintiffs’ NJLAD claim, in part because

they “did not allege any facts that indicate that [an individual plaintiff] was treated differently than

other students based on her national origin or any other protected characteristic.”).

e) Count V: Abuse of Process (asserted against Ayala and Bruno)

In Count V, Plaintiff alleges that Ayala and Bruno improperly abused the legal process “for

an ulterior motive not contemplated by law.” Compl. at 10, ¶ 3. Because Plaintiff does not provide

any citations to federal law and does not dispute Ayala’s classification of the claim as being

brought under common law, the Court construes her abuse of process claim under New Jersey

common law. See No. 9-1 at 7–8 (State Defendants argue that Plaintiff’s claim for malicious abuse

of process should be dismissed as a common law claim); Opp. at 18 (Plaintiff argues that various

causes of action, including Count V, survive dismissal because they are sufficiently pleaded,

without contesting the State Defendants’ classification of said claim).

Common law malicious abuse of process claims seek to hold a defendant liable for “the

improper, unwarranted, and perverted use of process after it has been issued . . .” Ash v. Cohn, 194

A. 174, 176 (N.J. 1937). “A successful malicious abuse of process claim requires a [p]laintiff to

demonstrate ‘(1) that defendants made an improper, illegal, and perverted use of the process, i.e.,

a use neither warranted nor authorized by the process; and (2) that in use of such a process there

existed an ulterior motive.’” Cluver v. Borough of Sayreville, No. 10-3173, 2013 WL 394030, at

*8 (D.N.J. Jan. 30, 2013), aff’d, 557 F. App’x 180 (3d Cir. 2014) (quoting Ash, 194 A. 176).

Special concern is directed to whether the defendant engaged in acts following the issuance of

process, which indicate the existence of an ulterior motive. Cluver, 2013 WL 394030, at *8;

Melillo v. Elizabeth Bd. of Educ., No. 11-4887, 2012 WL 6725837, at *7 (D.N.J. Dec. 27, 2012);

see Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 431–32 (App. Div. 2009) (noting that

a court’s “focus must not be on what prompted the suit but what action [the alleged wrongdoer]

engaged in after commencement of the action”).14 In the context of a criminal prosecution, the

issuance of process is the arrest of the plaintiff-victim. See Cluver, 2013 WL 394030, at *8.

Here, Plaintiff has failed to state a claim for common law abuse of process. While Plaintiff

makes the conclusory allegation that Ayala and Bruno acted with an ulterior motive, she neither

explains what the ulterior motive was nor alleges any specific instances following Plaintiff’s arrest

that could lead the Court to infer that Ayala or Bruno acted with an ulterior motive.15 See

Morisseau v. Borough of N. Arlington, No. 16-837, 2018 WL 1522731, at *17 (D.N.J. Mar. 28,

2018) (dismissing malicious prosecution claim because plaintiff’s only allegations of wrongdoing

14 For example, in Cluver, the court dismissed the malicious abuse of prosecution claim against

the defendant detective at summary judgment because the only allegation concerning post-arrest

conduct was that the detective engaged in an improper line of questioning, but there was nothing

in the interrogation transcript “to indicate that [the d]etective [] maliciously abused process or was

motivated by an ulterior motive during his interrogation.” 2013 WL 394030, at *8.

15 By contrast, in Melilo v. Elizabeth Board of Education, the plaintiff’s malicious prosecution

claim survived dismissal because: (1) plaintiff alleged that the defendant employer’s coercive

ulterior motives were to make the plaintiff’s underlying litigation more expensive and to prevent

his employment; and (2) plaintiff specifically alleged that, after the issuance of process, defendants

engaged in five, distinct acts––including protracting the litigation against him, blocking his

admission into criminal pre-trial intervention, attempting to undo his expungement, and filing a

complaint with the Division of Youth and Family Services despite his expungement––that

supported these ulterior motives. 2012 WL 6725837, at *7.

after the issuance of process constituted legitimate efforts to enforce a legal eviction). Plaintiff’s

sole allegation of specific conduct by Ayala and Bruno following Plaintiff’s arrest is that they

testified at a Wade hearing on behalf of the State on March 1, 2017. Compl. at 6, ¶ 22. However,

Plaintiff does not allege that Ayala or Bruno lied during their testimony, or otherwise acted in a

way suggestive of ulterior motive. See id. Ayala and Bruno’s participation as witnesses in a

criminal proceeding is not itself indicative of any ulterior motive, and is insufficient to support an

abuse of process claim. Cluver, 2013 WL 394030, at *8. Therefore, Plaintiff has failed to allege

an abuse of process claim against Ayala or Bruno,16 and Count V is dismissed. See Pierre v.

Treasury Dep’t, No. 18-3443, 2018 WL 5801549, at *9 (D.N.J. Nov. 5, 2018) (dismissing abuse

of process claim because the plaintiff did “not set forth any facts showing that the . . .

[d]efendants intentionally withheld information or elicited evidence that they knew to be false”)

(emphasis added); Morisseau, 2018 WL 1522731, at *17.

f) Count VI: Negligent and Intentional Infliction of Emotional Distress (asserted

against all Defendants)

In Count VI, Plaintiff asserts a negligent and intentional infliction of emotional distress

claim against the State Defendants, Ayala, and Bruno, based on the allegedly unlawful charging

and malicious prosecution of Plaintiff. Compl. at 11, ¶ 2. Count VI is dismissed as to the State

Defendants because Plaintiff has failed to file a notice of tort claim, and it is dismissed as to Ayala

and Bruno because Plaintiff has not asserted sufficiently severe injury or distress as a result of their

actions.

To assert a cause of action in tort against a public entity or its employees, a plaintiff must

submit a notice of claim to the public entity within ninety days of the claim’s accrual; otherwise

the claim is time-barred. Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (citing N.J.S.A. §

16 The Court sua sponte dismisses Count V as to Bruno for the reasons stated supra n. 10.

59:8-8(a)).17 Plaintiff concedes that she has failed to file a notice of tort claim and that her

negligent infliction of emotional distress claim against the State Defendants should be dismissed

on this basis. ECF No. 36 at 1–3. Thus, the Court dismisses the negligent infliction of emotional

distress claim as to the State Defendants.

Plaintiff argues against the dismissal of her intentional infliction of emotional distress

claim by incorrectly asserting that, under N.J.S.A. § 59:3-14, intentional torts are excluded from

the NJTCA’s notice requirement.18 ECF No. 37 at 3. In Velez, the New Jersey Supreme Court

explicitly held that, despite N.J.S.A. § 59:3-14, the NJTCA’s notice requirements apply to

intentional torts. 180 N.J. at 294 (2004) (finding that N.J.S.A 59:3-14 “must be read together with

the overall mandate of N.J.S.A. 59:8-3, that ‘[n]o action shall be brought against a public entity or

public employee under this [A]ct unless the claim [is] . . . presented in accordance with the

procedure set forth in this [Act].”). Therefore, Plaintiff is still required to comply with the notice

requirements of the NJTCA when asserting an intentional infliction of emotional distress claim

against a state entity or public employee. See Gillespie v. Janey, No. 09-885, 2010 WL 777954, at

*5 (D.N.J. Mar. 5, 2010), aff’d, 441 Fed. App’x 890 (3d Cir. 2011) (“A plaintiff seeking to file a

common law intentional tort action against a public entity or public employee must submit a notice

of claim to the public entity within ninety days of accrual of the claim.”); Van v. Borough of N.

Haledon, No. 05-5595, 2009 WL 1811727, at *13 (D.N.J. June 22, 2009) (“Pursuant to Velez,

17 NJTCA § 59:8-8(a) specifically states that “[a] claim relating to a cause of action for death or

for injury or damage to person or property shall be presented as provided in this chapter not later

than the 90th day after accrual of the cause of action. . . . The claimant shall be forever barred from

recovering against a public entity or public employee if: (a) The claimant failed to file the claim

with the public entity within 90 days of accrual of the claim.”

18 § 59:3-14 states: “[n]othing in this act shall exonerate a public employee from liability if it is

established that his conduct was outside the scope of his employment or constituted a crime, actual

fraud, actual malice or willful misconduct.”

however, the [NJ]TCA notice provisions apply both to negligent and intentional conduct, including

actions allegedly outside the scope of employment.”). Accordingly, because Plaintiff has failed to

comply with § 59:8-8(a)’s notice requirement, the intentional infliction of emotional distress claim

against the State Defendants is also dismissed. See Velez v. Fuentes, No. 15-6939, 2016 WL

4107689, at *6 (D.N.J. July 29, 2016) (dismissing tort claims against public entity with prejudice,

including intentional infliction of emotional distress claim, for failure to comply with § 59:8-8(a)).

With regard to the intentional infliction of emotional distress claim against Ayala and

Bruno, Plaintiff’s claim fails for a different reason. “To establish a claim for intentional infliction

of emotional distress, a plaintiff is required to establish: (1) that the defendants acted intentionally

or recklessly, both in doing the act and in producing emotional distress; (2) that the defendants’

conduct was so outrageous in character and extreme in degree as to go beyond all bounds of

decency; (3) that the defendants’ action were the proximate cause of the emotional distress; and

(4) that the emotional distress suffered was so severe that no reasonable person could be expected

to endure it.” Mardini v. Viking Freight, Inc., 92 F. Supp. 2d 378, 384 (D.N.J. 1999) (citing Buckley

v. Trenton Sav. Fund Soc’y, 111 N.J. 355, 366 (1988)). Under New Jersey Law, to satisfy the

fourth element, in addition to alleging severe distress, plaintiffs must assert that they suffered from

a specific ailment and sought treatment for it. Botts v. The New York Times Co., No. 03-1582, 2003

WL 23162315, at *9 (D.N.J. Aug. 29, 2003) (collecting cases) (granting 12(b)(6) motion to dismiss

because plaintiffs did “not allege[] that they have sought medical treatment for their distress”).19

19 Compare Mardini, 92 F. Supp. 2d at 385 (granting 12(b)(6) motion to dismiss intentional

infliction of emotional distress claim, noting that the plaintiff had “not alleged that she had to seek

medical assistance, or that any specific ailment afflicted her”); Harris v. Middlesex County

Coll., 353 N.J. Super. 31, 45–46 (App. Div. 2002) (affirming dismissal of intentional infliction of

emotional distress claim where plaintiff did not allege need for psychiatric counseling); Aly v.

Garcia, 333 N.J. Super. 195, 204–05 (App. Div. 2000) (intentional infliction of emotional distress

claim should be dismissed where no evidence that plaintiffs sought medical treatment for alleged

distress) with Maxon v. YRC Inc., No. 14–4653, 2015 WL 4394272, at *6–7 (D.N.J. July 6, 2015)

Here, Plaintiff alleges that she suffered “emotional distress and anxiety” as a result of the alleged

malicious prosecution against her, but she has not alleged that she sought any medical treatment.

See Compl. at 6, ¶ 26. Therefore, Plaintiff’s intentional infliction of emotional distress claim

against Ayala and Bruno is dismissed. See Botts, 2003 WL 23162315, at *9; Aly, 333 N.J. Super.

at 204–05.

Next, regarding Plaintiff’s negligent infliction of emotional distress claim, the applicable

standard is as follows:

Under New Jersey law, there are two legal theories under which a plaintiff can establish

a prima facie claim for negligent infliction of emotional distress. First, a plaintiff can show:

1) “death or serious physical injury of another caused by defendant’s negligence; 2) a

marital or intimate family relationship between plaintiff and the injured person; 3)

observation of the death or injury at the scene of the accident; and 4) resulting severe

emotional distress.” Fleming v. United Parcel Serv., Inc., 255 N.J. Super. 108, 166 (Law.

Div. 1992). Second, a plaintiff can show “the defendant’s negligent conduct placed the

plaintiff in ‘reasonable fear of immediate personal injury’ which gave rise to emotional

distress that resulted in a substantial bodily injury or sickness.” Jablonowska v. Suther, 195

N.J. 91, 103 (2008).

Van Tassel v. Ocean Cty., No. 16-4761, 2017 WL 5565208, at *9 (D.N.J. Nov. 17, 2017). Plaintiff

fails under the first theory because there is no indication that Ayala or Bruno caused the death or

serious physical injury of another. See id.; Fleming, 255 N.J. Super. at 166; Compl. Plaintiff fails

under the second theory because there is no indication that she was placed in fear of immediate

personal injury. See Van Tassel, 2017 WL 5565208, at *9; Jablonowska, 195 N.J. at 103.

Therefore, Plaintiff has failed to state a claim for negligent infliction of emotional distress against

Ayala or Bruno, and the claim will be dismissed. See Van Tassel, 2017 WL 5565208, at *9.

(denying 12(b)(6) motion to dismiss, noting the plaintiff alleged suffering from stress, anxiety,

recurring nightmares, had a heart attack, and underwent psychological counseling); Flammer v.

Cty. of Morris, No. 05–5039, 2006 WL 1307679, at *4 (D.N.J. May 10, 2006) (denying 12(b)(6)

motion to dismiss, noting the plaintiff alleged “that [the defendant’s] conduct caused him to seek

medical attention and resulted in him being prescribed medication for anxiety”).

Accordingly, Count VI is dismissed as to the State Defendants, Ayala and Bruno.20

g) Count VII: Punitive Damages (asserted against Officer Bernal, Sergeant Wells,

Ayala, and Bruno)

In Count VII (Compl. at 11), Plaintiff attempts to assert a standalone cause of action

for punitive damages under the Punitive Damages Act, N.J.S.A. § 2A:15-5.98. However,

“[p]unitive damages are a remedy incidental to [a] cause of action, not a substantive cause of action

in and of themselves.” Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000); see also N.J.

Stat. Ann. § 2A:15–5.13(c) (providing that punitive damages may be awarded under New Jersey

law only if compensatory damages have been awarded). Accordingly, the Court dismisses Count

VII for punitive damages because Plaintiff improperly asserts her request for punitive damages as

a separate cause of action. See Onyejekwe v. Uber Techs., Inc., No. 19-10196, 2020 WL 2832566,

at *3 (D.N.J. June 1, 2020) (dismissing standalone claim for punitive damages without prejudice

because it is not cognizable); Smith v. Covidien LP, No. 19-11981, 2019 WL 7374793, at *10

(D.N.J. Dec. 31, 2019) (dismissing punitive damages claim because a standalone cause of action

for punitive damages is not cognizable, and disregarding the defendant’s argument that plaintiff

insufficiently pled conduct to warrant such damages).

IV. Conclusion

For the foregoing reasons, Ayala’s (ECF No. 9) and the State Defendants’ motions to

dismiss (ECF No. 10) are granted, and the Complaint (ECF No. 1-2) is dismissed. To the extent

that Plaintiff can cure any of the pleading deficiencies discussed herein, she may file an amended

complaint within thirty (30) days of the date of this Opinion.

An appropriate Order follows this Opinion.

20 The Court sua sponte dismisses Count VI as to Bruno for the reasons stated supra n. 10.

Date: April 28, 2021 CA. CL

HON. CLAIRE C. CECCHI, U.S.D.J.

26