# COUSAR v. MORGAN

> District Court, D. New Jersey · July 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10273455

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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”).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273455. Public record. Not legal advice.