COUSAR v. MORGAN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SAEED M. COUSAR,

Plaintiff, Case No. 2:21-14517 (BRM) (JSA)

v. OPINION

SEAN MORGAN, et al.

Defendants.

.

MARTINOTTI, DISTRICT JUDGE

Before the Court is Plaintiff pro se prisoner Saeed M. Cousar’s (“Plaintiff”) second

amended complaint (“Second Amended Complaint”), filed pursuant to 42 U.S.C. § 1983. (ECF

No. 10.)

On December 15, 2021, after granting Plaintiff’s application to proceed in forma pauperis,

the court screened Plaintiff’s Complaint for dismissal under 28 U.S.C. § 1915(e)(2)(B). (Op. (ECF

No. 5).) The Court dismissed Plaintiff’s Ninth Amendment claim, Interstate Agreement on

Detainers claim, and official capacity claims for monetary relief with prejudice. (Order (ECF No.

6).) The Court dismissed the remainder of the Complaint without prejudice for failure to state a

claim for relief and permitted Plaintiff to file an Amended Complaint if he could cure the

deficiencies in his claims. (Id.)

On January 12, 2022, Plaintiff filed an Amended Complaint. (ECF No. 7.) The Court

dismissed Plaintiff’s Amended Complaint without prejudice for failure to state a claim for relief

and permitted Plaintiff to file a Second Amended Complaint if he could cure the deficiencies in

his claims. (Order (ECF No. 9).)

On April 8, 2022, Plaintiff filed his Second Amended Complaint. (See ECF No. 10.)

Plaintiff again raises claims against Defendants Jason Sluberski, Detective for Hudson County

Prosecutor’s Office; Investigator Sean Morgan, New York State police officer; Investigator Brian

Huff, New York State police officer; Investigator Peter J. Ciacci, New York State police officer,

and Melissa Lynch, Assistant District Attorney for Putnam County, New York. (See id.) Plaintiff’s

Second Amended Complaint alleges Fourteenth Amendment due process violations, unlawful

search, false arrest, malicious prosecution, an Equal Protection violation, conspiracy, and various

state law claims. (Id.)

At this time, the Court must review the Second Amended Complaint, pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915A, to determine whether it should be dismissed as frivolous or malicious,

for failure to state a claim upon which relief may be granted, or because it seeks monetary relief

from a defendant who is immune from such relief. For the reasons set forth below, the Court

concludes the Complaint should be DISMISSED in its entirety.

I. BACKGROUND

The Court construes the factual allegations of the Second Amended Complaint as true for

the purposes of this Opinion. The Second Amended Complaint fails to submit detailed factual

allegations. The Court previously summarized Plaintiff’s allegation as follows:

Plaintiff submits in March 2015 Trooper Jason Pugh of the New

York State Police met with “Raymond Ill,” who alleged “he was a

victim of ID theft and the person responsible for this did this to hi[m]

[once before] [] in 2000.” (ECF No. 7 ¶ 19.) Plaintiff alleges

Raymond Ill explained that he was recently receiving emails and

telephone calls about wire transactions from his accounts and Chase

Bank confirmed “several wire transfers from that account to another

account with the name [Plaintiff] Saeed Cousar.” (Id. ¶¶ 20-21.)

Raymond Ill explained to the Trooper Pugh that [Plaintiff] was the

“same person who was arrested in 2000 for stealing $75,000.00 by

opening credit cards and buying a car in [Raymond] Ill’s name.” (Id.

¶ 21.) Trooper Pugh then informed Defendant Morgan regarding

Raymond Ill’s grand larceny complaint. (Id. ¶ 22.)

Plaintiff submits Defendant Morgan completed a report in which he

noted that Petitioner was prosecuted in New Jersey for the 2000

arrest and his criminal record showed he was convicted of a felony

and sentenced to state prison. (Id. ¶¶ 22-24.) On March 10, 2015,

after an inmate records search showed Petitioner was not

incarcerated, Defendant Morgan contacted Assistant Prosecutor

Brian Stack and Detective Rachel McCaffrey, who “advised

[Petitioner] was [currently] indicted for [unrelated] bank/wire fraud

type charge[s] and his case [was] pending.” (Id. ¶ 26.) Plaintiff

alleges that Defendant Morgan, Brian Stack, and Detective

McCaffrey had a scheme to delay charges regarding Raymond Ill,

to see if Plaintiff was convicted of those New Jersey charges. (Id. ¶

70.)

On March 12, 2015, Defendant Morgan “contacted Assistant

District Attorney Chana Krauss to request a grand jury subpoena

addressed to JP Morgan Chase for application records related to

fraudulent transactions” and informed Raymond Ill they were going

to focus on the JP Morgan Chase transactions. (Id. ¶¶ 27-28.)

Petitioner submits the following regarding information found during

Defendant Morgan’s investigation:

July 21, 2015, [Defendant] Morgan received the

Verizon Fios subpoena compliance [with] the

documents in question show[ing] that the unlawful

computer login occurred at 172 Culver Ave[nue] unit

205 Jersey City[,] NJ 07305 and the subscribers

name is Natalie Ornelas.

. . .

On July 29, 2015 Raymond Ill contacted [Defendant]

Morgan to report at least five additional attempts to

open or modify credit on his credit card. He stated

the calling parties provided a Georgia street address

and a South Carolina phone number. [Defendant]

Morgan stated it is [u]nclear how the attempts relate

to the ongoing investigation.

On July 29, 2015 [Defendant] Morgan contacted

Denali Property Management, the manager for 172

Culver Ave[nue] ][p]roperty; she advised unit 205 is

owned by Ramesh Khosla.

On the same date [] [Defendant] Morgan was able to

speak with Ramesh Khosla “telephonically”, Khosla

confirmed that he own[ed] unit 205 at 172 Culver

Ave[nue]. He stated he has rented the unit to

[Plaintiff] since about December 2014 [].

[Defendant] Morgan mentioned to Khosla that there

were at least [two] wire transfers from [Raymond]

Ill’s account to Khosla on 2/28/2015 and 3/2/2015

each for [$]2000[.00] with memo indicating “rent.”

Khosla state[d] he specifically recalls those

attempted transfers because they were “recalled by

the bank.” He recalls being notified by the bank to

“ask the sender to get in touch with the bank.” He

states he doesn’t know if [Plaintiff] ever followed up

with the bank.

(Id. ¶¶ 29-34.)

Plaintiff submits in September 2015 Defendant Morgan prepared a

search warrant. (Id. ¶ 35.) Plaintiff alleges the October 2015

affidavit of probable cause was deficient and “[Defendant]

Morgan[,] with reckless disregard of the truth[,] used a fabricated

statement from Raymond III . . . that [Plaintiff] was the same person

who used his information in 2000 for stealing [$]75,000 by opening

up credit cards and buying a car in his name.” (Id. ¶¶ 52-53.)

Plaintiff submits the fabricated statement “was not supported by

evidence of any judgement of conviction that [Plaintiff] was

convicted on any crime against Raymond Ill in 2000.” (Id. ¶ 54.) On

October 15, 2015, Defendant Morgan, Defendant Huff, Defendant

Stafanik, and Defendant Sluberski executed the search warrant at

Plaintiff’s home, located at 172 Culver Avenue Apartment 205,

Jersey City, New Jersey. (Id. ¶¶ 36, 48.) Plaintiff alleges these

Defendants lacked probable cause for the search warranted because

they “‘improperly obtained search warrants by providing

‘deliberately false information’ and using ‘unlawful’ and

‘fabricated’ evidence.” (Id. ¶ 49.)

Plaintiff submits in December 2016 Defendant Ciacci began

supervising the case and spoke with Defendant Lynch regarding the

case. (Id. ¶¶ 39-41.) On June 16, 2017, Defendant Ciacci was

informed that Plaintiff had been sentenced to five years

imprisonment in New Jersey state prison for identity theft charges.

(Id. ¶ 42.)

In January 2018, Defendants Huff and Ciacci interviewed Plaintiff,

who denied knowing Raymond Ill or paying his landlord with a wire

transfer. (Id. ¶ 43.) Plaintiff submits the following took place after

the interview:

On March 12, 2018, [Defendant] Ciaccia spoke with

[Defendant] Lynch regarding this case, she advised

that she would review the case and respond with a

decision on prosecution within the week.

On March 22, 2018, [Defendant] Ciacci applied for

an arrest warrant at the town of Putnam Valley Court

which was granted by Hon[orable] Gina Capone for

grand larceny 3rd and two counts of [i]dentity theft

1st. Arrest warrant was forwarded to ADA Lynch for

extradition filing and was lodged with So[u]thern

State Correctional Facility.

On October 22, 2018, [Plaintiff] was extradited to

New York and arrived in New York State the same

day and was proceeded by [Defendant] Ciacci and

after being booked [Plaintiff] was transported to

Putnam Valley Court and arraigned by a Judge

without an attorney present.

On October 22, 2018, after being arraigned

[Plaintiff] was transported to Putnam County Jail, in

Putnam County New York where he [was] processed

and detained.

(Id. ¶¶ 44-47.) Plaintiff submits the arrest warrant “did not include

an affidavit or sworn statement establishing probable cause.” (Id. ¶

60.) Plaintiff argues when Defendant Ciacci applied for the arrest

warrant he did not establish probable cause. (Id. ¶ 61.) Plaintiff

claims Defendant Ciacci’s submissions that Plaintiff had

electronically transferred funds from Raymond Ill’s Chase account

to pay his landlord rent were false because there was no evidence

Plaintiff committed the alleged acts. (Id. ¶¶ 61-65.)

Plaintiff submits in March 2018, Defendants Ciacci and Lynch

conspired by coming up with false charges against him. (Id. ¶ 73.)

Plaintiff asserts the complaint was not supported by probable cause

“because in view of the police report the statement from Ramesh

Khosla was that he ‘specifically recalls those attempted transfers’

[and] there was no supporting statement or evidence that the alleged

victim Raymond Ill suffered any los[s] and there was no statement

identifying [Plaintiff] made any transfer.” (Id. ¶ 74.) Plaintiff alleges

Defendant Lynch and Brian Stack “who is part of another lawsuit”

were “working together, strategizing, and in a single minded effort

agreeing to violate [Plaintiff’s] 6th, 4th, and 14th Amendment rights .

. . resulting in the unconstitutional arrest, prosecution, and

conviction of [Plaintiff].” (Id. ¶ 81.)

Plaintiff submits his prosecution in New York for grand larceny and

identity theft exceed New York’s criminal territorial jurisdiction.

(Id. ¶ 84.) Plaintiff also submits he was innocent of the alleged acts

that were committed in New Jersey. (Id.) The Amended Complaint

indicates the charges against Plaintiff were dismissed due to a

jurisdictional issue, explaining “on February 3, 2021, the judgment

is reversed, on the law, that branch of the [Plaintiff’s] omnibus

motion which was pursuant to CPL 20.20 to dismiss the superseding

indictment for lack of territorial jurisdiction is granted, the

superseding indictment is dismissed.” (Id. ¶ 87.)

(Op. (ECF No. 8 at 2-6).)

Plaintiff’s Second Amended Complaint submits that Defendants Morgan and Suberski

submitted an affidavit that did not provide information regarding whether Plaintiff committed

criminal activity in the home. (ECF No. 10 ¶ 20.) Plaintiff claims the affidavit submitted that the

IP address from 172 Culver Avenue, Jersey City, New Jersey, was in a woman’s name but never

mentioned whether Plaintiff was involved in fraud against Raymond Ill. (Id.) Plaintiff now submits

he was:

[U]naware that he suffered a[n] injury on October 15, 2015 and that

it was the fault of the New York State Police and the Hudson County

Prosecutor’s Office because on October 15, 2015 Plaintiff [] was not

home during the search, but he came home later to find his apartment

door was kicked in and his home had been [ransacked] with

mattresses moved and everything pulled out of his drawers and

storage bins, including his clothing and intimate apparel. No

documentation or note was left behind to inform [Plaintiff] that New

York State police had searched it.

(Id. ¶ 21.) The Second Amended Complaint submits that Plaintiff was not made aware of the search

until December 12, 2019, when Putnam County Legal Aid informed him of the search. (Id.)

Plaintiff claims the warrant was illegally obtained because “it was based upon extra-

jurisdictional observations of [Plaintiff’s] home by New York State Police.” (Id. ¶ 24.)

II. LEGAL STANDARD

Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66

to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions

in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress

against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with

respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte

dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief from a defendant who is immune from such relief. This action is

subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because

Plaintiff is a prisoner who is proceeding as indigent.

According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers

‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To

survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient

factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (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.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir.

2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally construed,

“pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:

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

regulation, custom, or usage, of any State or Territory . . .

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

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by

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

an action at law, suit in equity, or other proper proceeding for

redress . . . .

Therefore, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation

of a right secured by the Constitution or laws of the United States and, second, the alleged

deprivation was committed or caused by a person acting under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

III. DECISION

A. Unlawful Search

Plaintiff again raises an unlawful search claim. (ECF No. 10, at 1.) Plaintiff claims on

October 15, 2015, Defendants Huff, Morgan, and Sluberski unlawfully and without probable cause

executed a search warrant on Plaintiff’s residence. (Id.) Plaintiff’s unlawful search claim again

fails to state a plausible claim for relief.

Plaintiff argues Defendants Morgan and Sluberski “knew or should have known that the

affidavit in support of the warrant did not create probable cause when they presented it to the

issuing judge.” (Id. ¶ 19.) Plaintiff again claims these Defendants obtained search warrants

“premised on information that was either knowingly presented as false or presented as true in

reckless disregard for the truth.” (Id.)

The Fourth Amendment provides, in pertinent part: “The right of the people to be secure

in their persons, houses, papers and effects, against unreasonable search and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend IV. As such,

“a search or seizure conducted without a warrant or probable cause may form the basis of a § 1983

claim based on the Fourth Amendment.” Castro v. Perth Amboy Police Dept., 2014 WL 229301,

at *2 (D.N.J. Jan. 21, 2014) (citing Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010)).

In its prior Opinion, the Court explained in depth that the evidence supported a finding of

probable cause to support the issuance of a search warrant.1 Plaintiff fails to submit new well-

pleaded facts to support a claim for unlawful search.

Plaintiff now claims the affidavit for the search warrant falsely indicated that Mr. Khosla

stated he “was advised to ask the sender [Plaintiff] to get in touch with the bank.” (ECF No. 10

¶ 26.) Plaintiff submits this statement was not contained in the police report and is therefore false.

(Id.) Plaintiff is incorrect. The police report, which was provided by Plaintiff, indicates Mr. Kholsa

“recalls being notified by the bank to ‘ask the sender to get in touch with the bank.’” (ECF No. 10-

1, Ex. A at 8.)

Plaintiff again argues that Defendant Morgan recklessly disregarded the truth when he used

a fabricated statement from Mr. Ill, that Plaintiff was the same person who used Mr. Ill’s identity

in 2000 to steal $75,000. (ECF No. 10 ¶ 31.) As explained by the Court previously, this argument

does not prove a lack of probable cause for Plaintiff’s arrest. The record provided by Plaintiff does

not support his allegation that Defendant showed “reckless disregard for the truth” and submitted

a “fabricated statement.” (ECF No. 8 at 10.) Plaintiff attached to his first amended complaint a

signed statement from Raymond Ill in which he informed Defendant Morgan that he was the victim

1 The Court also found Plaintiff’s unlawful search claim to be time-barred. Plaintiff now requests

the Court apply the Discovery Rule to find Plaintiff was unaware of the search and the injury to

him until December 2019. (ECF No. 10 ¶ 21.) The Court need not decide this issue. As explained

in the Court’s previous Opinion, even if Plaintiff’s unlawful search claim is not time-barred,

Plaintiff still fails to state a claim upon which relief can be granted. (See ECF No. 8.)

of identity theft at the hands of Plaintiff in 2000. (ECF No. 7 at 45.) Assuming Mr. Ill’s statement

was false, Plaintiff offers no facts to show Defendant Morgan would have known this was a false

statement. The Court has already addressed Plaintiff’s argument in its previous Opinion. (See ECF

No. 8 at 10-11.) The Court provided the following analysis:

Additionally, assuming arguendo that the statement is false, the

application for a search warrant contained sufficient probable cause

without that statement. The application noted that J.P. Morgan

Chase bank records revealed someone was logging in to Raymond

Ill’s account from IP address 100.1.89.122 (ECF No. 7, at 60.).

Documents from Verizon Fios showed IP address 100.1.89.122

returned to 172 Culver Avenue, Apartment 205, Jersey City, New

Jersey. (Id., at 61.) Bank records from J.P. Morgan Chase showed

on February 28, 2015, “a transfer of $2000 from ‘Raymond P. Ill’

was made to ‘landlord (sic)’, [t]he recipient email was

ramesh@prkbuilder.com.” (Id., at 61.) On March 2, 2015, “an

additional transfer of $2000 from ‘Raymond P. Ill’ was made to

‘landlord (sic),” [t]he recipient email was

ramesh@prkbuilder.com.” (Id.) The application for the search

warrant further explained www.prkbuilder.com is a contracting firm

who does business in 172 Culver Avenue, Jersey City, which is the

same building Plaintiff’s apartment was in. Additionally, the

contracting firm’s principal was Ramesh Khosla. (Id.) In July 2015,

Ramesh Khosla informed Defendant Morgan, Plaintiff was a tenant

172 Culver Avenue, Apartment 205 since December 2014 and had

attempted twice to pay his rent with wire transfers, which were

recalled by the bank. (Id., at 62.)

The record supplied by Plaintiff shows sufficient probable cause for

the issuance of the search warrant. Accordingly, the claim for

unlawful search against Defendants Huff, Morgan, and Sluberski is

dismissed without prejudice.

(ECF No. 8 at 10-11.) Plaintiff has failed to submit any additional facts to cure the deficiencies

found by the Court for his unlawful search claim. Therefore, Plaintiff’s unlawful search claim

against Defendants Huff, Morgan, and Sluberski is dismissed.

B. False Arrest

Plaintiff again raises a false arrest claim against all Defendants. (ECF No. 10, at 7.)

Plaintiff’s false arrest claim fails to state a plausible claim for relief.

The elements of a false arrest claim are (1) that an arrest occurred; and (2) that the arrest

was made without probable cause. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir.

1995). “Probable cause to arrest exists where the arresting officer has knowledge of facts and

circumstances sufficient to permit a prudent person of reasonable caution to believe that the person

arrested has committed an offense.” Young v. City of Hackensack, No. 04-2011, 2005 WL

1924327, at *3 (D.N.J. Aug. 11, 2005), aff’d, 178 F. App’x 169 (3d Cir. 2006). Generally speaking,

a facially valid warrant establishes probable cause for an arrest and indicates that officer’s arrest

was objectively reasonable. See Young, 178 F. App’x at 171–72 (affirming grant of summary

judgment to defendants in false arrest § 1983 case on basis of probable cause and qualified

immunity where warrant “appears on its face to be valid”)

Where a plaintiff is arrested pursuant to a facially valid warrant, however, a court may only

find probable cause lacking if the arresting officer “knowingly and deliberately, or with a reckless

disregard for the truth, made false statements or omissions that create a falsehood in applying for

a warrant” and “such statements or omissions [were] material, or necessary, to the finding of

probable cause.” Wilson v. Russo, 212 F.3d 781, 786–87 (3d Cir. 2000) (citing Sherwood v.

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)); see also Eckman v. Lancaster City, 529 F. App’x

185, 186 (3d Cir. 2013). An officer makes an assertion with reckless disregard for the truth “when

viewing all the evidence, [the officer] must have entertained serious doubts as to the truth of his

statements or had obvious reasons to doubt the accuracy of the information he reported.” Wilson,

212 F.3d at 788.

Here, Plaintiff again argues his arrest warrant “did not include an affidavit or sworn

statement establishing probable cause.” (ECF No. 10 ¶ 39.) Plaintiff claims Defendant Ciacci “did

not establish probable cause, because in viewing the police report [it] did not set forth facts giving

rise to probable cause.” (Id., ¶ 40.) Plaintiff fails to provide any additional facts to cure the

deficiencies in Plaintiff’s claim found by the Court in its previous Opinion. (See ECF No. 8.)

Plaintiff realleges what he believes are false statements or omissions in the affidavit of probable

cause. (See ECF No. 10 ¶¶ 43–49.) Plaintiff does not provide facts to support his allegation that

portions of the affidavit are false. Rather, he makes conclusory arguments that the statements in

the affidavit are false. (See id.)

The Court previously found probable cause to support Plaintiff’s arrest for the following

reasons:

Defendant Morgan’s search warrant application detailed that the J.P.

Morgan Chase bank records showed two transfers of $2,000.00 from

Raymond Ill’s account, which were to “landlord” at

ramesh@prkbuilder.com. Ramesh Khosla confirmed that he was

Plaintiff’s landlord at 172 Culver Avenue, and Plaintiff attempted to

pay his rent with two $2,000.00 wire transfers. ([ECF No. 7] at 61-

62.) Plaintiff was arrested based on an arrest warrant that was found

to have probable cause and Plaintiff has not alleged facts that would

undermine that finding of probable cause. Plaintiff has failed to state

a plausible claim for relief. Plaintiff false arrest claim is therefore

dismissed without prejudice as to all Defendants.

(ECF No. 8 at 13.)

The Second Amended Complaint fails to provide facts to cure the deficiencies in Plaintiff’s

false arrest claim previously found by the Court. As such, Plaintiff’s false arrest claim against all

Defendants is dismissed for substantial the same reasons found by the Court previously.

C. Malicious Prosecution

The Court construes the Second Amended Complaint as again raising a malicious

prosecution claim. (See ECF No. 10 ¶¶ 106–11.)

Malicious prosecution claims raised pursuant to § 1983 arise out of the protections

enshrined in the Fourth Amendment. Halsey v. Pfeiffer, 750 F.3d 273, 296–97 (3d Cir. 2014). To

state a claim for malicious prosecution, a plaintiff must allege the following elements:

(1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in [the plaintiff’s] favor; (3) the defendant

initiated the proceeding without probable cause; (4) the defendant

acted maliciously or for a purpose other than bringing the plaintiff

to justice; and (5) the plaintiff suffered [a] deprivation of liberty

consistent with the concept of seizure as a consequence of a legal

proceeding.

Id. (internal citations omitted).

As discussed above, and at length in the Court’s prior Opinion (ECF No. 8), Defendant’s

affidavit provided probable cause for Plaintiff’s arrest. The Second Amended Complaint fails to

plead facts to support a claim that the Defendants “initiated the proceeding without probable

cause.” Halsey, 750 F.3d at 296–97. For the reasons given above, the Second Amended Complaint

fails to state a claim upon which relief can be granted for malicious prosecution. Plaintiff’s

malicious prosecution claim is therefore dismissed.

D. Malicious Abuse of Power

Plaintiff’s Second Amended Complaint raises a claim for “malicious abuse of power.”

(ECF No. 10 ¶¶ 54–68.)

At a high level of generality, § 1983 is aimed at preventing “abuses of power by those

acting under color of state law.” Robertson v. Wegmann, 436 U.S. 584, 591 (1978); see also Giles

v. Campbell, 698 F.3d 153, 156 (3d Cir. 2012). Some underlying violation of the U.S. Constitution

or state law, however, must be alleged. “[A]buse of power” is not itself “an independently

cognizable claim for § 1983 purposes.” O’Bradovich v. Village of Tuckahoe, 325 F. Supp. 2d 413,

426 (S.D.N.Y. 2004); see also In re Copeland, No. 18-13948, 2019 WL 1090005, at *2 (Bankr.

W.D. Okla. Mar. 7, 2019) (collecting cases that state there is no freestanding cause of action for

abuse of power); Paoli v. Stetser, No. 12-66, 2014 WL 3386037, at *34 (D. Del. July 11, 2014),

adopted in part, rejected in part, 2014 WL 5857567 (D. Del. Nov. 10, 2014), aff’d, 651 F. App’x

123 (3d Cir. 2016) (“[T]here is not a separate legally cognizable claim of ‘abuse of power’ under

federal law.”). That a defendant abused her power in the course of committing some alleged

constitutional violation “adds nothing of legal significance to Plaintiffs’ complaint”; “Section 1983

draws no distinction between abusive and nonabusive federal violation and does not require proof

of abuse of governmental power separate and apart from proof of constitutional violations.”

O’Bradovich, 325 F. Supp. 2d at 426 (citing Collins v. City of Marker Heights, Tex., 503 U.S. 115,

119 (1992).

Here, Plaintiff alleges Defendants abused their power in arresting and prosecuting him.

(ECF No. 10 ¶ 68.) Since there is no independent cause of action for “abuse of power,” and

Plaintiff’s claim is premised upon the same allegations and constitutional deprivations addressed

under Plaintiff’s false arrest and malicious prosecution claims, the Court will dismiss Plaintiff’s

abuse of power claim as redundant. See Janowski v. City of N. Wildwood, 259 F. Supp. 3d 113,

132 (D.N.J. 2017) (dismissing counts as duplicative where the counts were premised upon the

same allegations and underlying facts).

E. Due Process, Equal Protection, and Conspiracy

The Second Amended Complaint raise claims under the Fourteenth Amendment Due

Process Clause and Equal Protection Clause, as well as § 1985 conspiracy claim. (See ECF No. 10

at ¶¶ 99–105, 112–16, 117–25.) Plaintiff raised these identical claims in his first amended

complaint. (See ECF No. 7 at ¶¶ 114–20, 131–35, 141–48.) Plaintiff has failed to provide any

supplemental facts or arguments regarding these claims. As such, the Court dismisses Plaintiff’s

Fourteenth Amendment Due Process Clause claim, Fourteenth Amendment Equal Protection

Clause claim, and § 1985 conspiracy claim for the reasoning provided in the Court’s March 9,

2022 Opinion. (See ECF No. 8 at 15–19.)

IV. CONCLUSION

For the reasons stated above, the Second Amended Complaint is DISMISSED in its

entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which

relief may be granted.2 As this is Plaintiff’s third attempt to state a claim upon which relief can be

granted, and the Second Amended Complaint fails to do so, the Court finds it would be futile for

Plaintiff to file a Third Amended Complaint. See Fed. R. Civ. P. 15. As such, Plaintiff shall no

longer be granted leave to file an amended complaint. An appropriate order follows.

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

Dated: July 7, 2022

2 Because the Court dismissed all federal claims, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s state law claims. See 28 U.S.C. § 1367(c)(3) (a district court may

decline to exercise supplemental jurisdiction over a claim if the court “has dismissed all claims

over which it has original jurisdiction”).