PANOVA v. PALISADES INTERSTATE PARKWAY POLICE DEPARTMENT

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KATERYNA PANOVA, individually, and

SLAVA RIVKIN, individually, Ed.R. (a minor

child), by and through his Guardian ad Litem,

Ev.R. (a minor child), by and through her

Guardian ad Litem,

Plaintiffs, Civil No. 21-cv-226 (KSH) (CLW)

v.

PALISADES INTERSTATE PARKWAY

POLICE DEPARTMENT, COREY PATULLO,

THOMAS M. SHINE, JEFFREY M. KIMBRO,

CARE PLUS NJ, INC., LISA SAUNDERS,

OPINION

PHILLIP CRADDOCK, JOHN and JANE DOE(s)

1-10 (fictitious persons and/or entities yet to be

identified),

Defendants.

Katharine S. Hayden, U.S.D.J.

I. Introduction

This civil rights action is brought by plaintiffs Kateryna Panova, along with her husband,

Slava Rivkin, individually and as guardians ad litem for their two minor children, Ev.R. (age 3)

and Ed.R. (age 4) (together with Panova and Rivkin, “plaintiffs”).1 Their lawsuit arises from an

April 2020 incident at the Palisades Interstate Park involving Panova, her children, and

individual defendant Phillip Craddock, who encountered Panova and called the police on her.

For their roles in the incident and its aftermath, plaintiffs also sue the Palisades Interstate

1 The complaint first alleges that Ed.R. was five “at the times relevant to this Complaint,” but

then later alleges that he was four. (D.E. 1, Compl. ¶¶ 18, 42.) The Court presumes for purposes

of this opinion that Ed.R. was four at the time of the incident and five at the time the complaint

was filed.

Parkway Police Department (the “PIPPD”); PIPPD officers Corey Patullo, Thomas M. Shine,

and Jeffrey M. Kimbro (the “defendant officers”); Care Plus NJ, Inc. (a company providing

certain services for the PIPPD by contract); and Lisa Saunders, a Care Plus employee. Presently

before the Court is the motion to dismiss (D.E. 15) filed by the PIPPD and the defendant officers.

For the reasons set forth below, the motion will be granted in part and denied in part.

II. Background

The complaint alleges as follows. Panova, Rivkin, and their children live in Fort Lee,

New Jersey, near the entrance to the Palisades Interstate Park. (Compl. ¶¶ 2-5, 20.) She and the

children routinely hike in and around the park. (Id. ¶ 22.) According to the complaint, theirs is

an “active family that likes to engage in athletic activities, such as hiking, ice skating, rock

climbing, skiing and diving.” (Id. ¶ 34.)

On April 15, 2020, Panova set out to hike in the park with Ev.R. and Ed.R., accessing it

through a portion of fencing outside the park’s entrance that had been downed by a log. (Id. ¶¶

18, 23, 26, 29, 42.) Panova had “seen the condition of the downed fence for quite some time,

and had observed other individuals using it to access the hill into the park for hiking.” (Id. ¶ 24.)

She had also seen people entering the area and carrying bikes up that hill. (Id. ¶ 25.) There was

no signage indicating that the fence area could not be used as a park entrance. (Id. ¶ 28.)

Once inside the park, Panova and her children “used the accessible part of the hill to

access a commonly known hiking trail.” (Id. ¶ 27.) They began walking up the hill “without

incident.” (Id. ¶ 29.) When they reached the top of the hill, defendant Craddock walked by with

a woman companion. (Id. ¶ 30.) He started shouting at Panova “without provocation,” alarming

her. (Id. ¶¶ 31-32.) She attempted to ignore him, but he approached and asked if she needed

help. (Id. ¶¶ 33, 35.) Coming closer, he insisted she did. (Id. ¶¶ 37-38.) When Panova told him

they were fine, Craddock threatened to call the authorities unless she and the children did what

he told them. (Id. ¶¶ 39-40.) He grabbed Panova’s son around the waist and held him “without

consent or authorization,” frightening him and distressing Panova. (Id. ¶¶ 42-44.) Craddock

refused to let the boy go despite Panova’s pleas. (Id. ¶¶ 45, 47.) Contrary to New Jersey’s mask

requirements, Craddock was not wearing a mask and Panova told him she was not comfortable

with a stranger touching her child or being in close proximity to him without a mask. (Id. ¶¶ 46,

48-49.) Craddock continued to restrain the boy while he called the police. (Id. ¶ 50.)

Defendant officers Patullo, Kimbro, and Shine of the PIPPD arrived, entering the park

through the same downed fence. (Id. ¶¶ 51-52.) Panova told the officers she did not want

Craddock (who continued to restrain the boy while she talked to the officers) holding Ed.R. and

that she wanted to walk back down the hill with her children. (Id. ¶¶ 53, 57.) Like Craddock,

the officers were not wearing masks and they stood close by, notwithstanding masking and social

distancing protocols in place. (Id. ¶¶ 54-56.)

The officers “prevented . . . Panova from descending the hill under her own free will and

volition,” despite “there being no actual or threatened harm” to her and the children because they

could have “easily walked back down without any appreciable risk.” (Id. ¶¶ 58-60.) Instead, the

officers called for ladders, which responding firefighters carried up the hill. (Id. ¶¶ 61-62.) They

refused to allow Panova to walk down the hill on her own, with Patullo “physically restrain[ing]”

her “with force on the cliff.” The officers let Craddock continue to hold Panova’s son. (Id. ¶¶

64-65.) Panova had been holding her daughter, and only reluctantly handed over the crying child

to be carried down the ladder. (Id. ¶ 66.) Panova alleges that she was then thrown to the ground

and dragged. (Id. ¶¶ 67-68.) Craddock put his hand through her belt loop and Panova was

“forcefully carried down the ladder.” (Id. ¶ 69.)

Rivkin, Panova’s husband, had arrived and witnessed some of these events. (Id. ¶ 70.)

Officers refused to let him help Panova and their children. (Id. ¶ 71.) Once Panova and the

children were down he hill, the children were released to Rivkin. (Id. ¶ 72.)

At that point, in front of her family, Officer Patullo arrested Panova and she was taken to

the police station for processing. (Id. ¶¶ 73-74.) There, Patullo and Shine “demand[ed] [she] . . .

provide her pedigree information,” and Patullo made unspecified “intentional, malicious, and

condescending statements to [Panova] in the presence of the other officers.” (Id. ¶¶ 75-76.)

They refused her request for water, saying there was none, as well as her repeated requests to use

the bathroom because two officers would be required for a bathroom trip and Patullo was busy.

(Id. ¶¶ 77-82.) Ultimately, several hours later, Shine, unaccompanied by another officer,

relocated Panova to a cell that had a bathroom. (Id. ¶ 84.) Shine refused Panova’s request to talk

to her husband or to an attorney. (Id. ¶¶ 85-86.)

When Panova refused to speak without an attorney, the officers “needlessly summon[ed]

an EMS ambulance” allegedly in retaliation, even though she had not requested any emergency

medical treatment. (Id. ¶¶ 88-91, 93.) Panova “refus[ed] to accept ambulance treatment.” (Id.

¶¶ 92, 95.) The officers then called the New Jersey Department of Child Protection and

Permanency (the “DCPP”) to make a complaint against Panova and Rivkin for child abuse and

neglect. (Id. ¶ 95.) Patullo also filed a criminal complaint charging Panova with child

endangerment under N.J.S.A. 2C:24-4(a)(2) and obstruction of the administration of the law

under N.J.S.A. 2C:29-1(a). (Id. ¶ 94.)

Additionally, Patullo contacted defendant Care Plus, which has a contract with the PIPPD

“to provide screening services to determine whether persons are so mentally unfit they must be

involuntarily committed under state law.” (Id. ¶¶ 96-97.) Defendant Saunders, on behalf of Care

Plus, came to the station to evaluate Panova. (Id. ¶ 98.) After a half-hour discussion between the

two, Saunders told Panova she was fine and further evaluation was unnecessary. (Id. ¶¶ 99-100.)

But, according to Panova, Saunders was “pressured” to change her recommendation to one for

involuntary commitment after speaking with the other defendants. (Id. ¶¶ 101-02.) Saunders

authorized Panova’s involuntary commitment to Bergen New Bridge Health and Medical Center;

Panova was transported there and held for 10 hours. (Id. ¶¶ 103-04.) The officers did not tell

Rivkin where his wife had been taken, though he was at the station with an attorney and was

asking where she was. (Id. ¶¶ 105-08.) At the medical center, no drugs or alcohol were detected

in Panova’s system, and she was released without any diagnosis of prior or present mental health

conditions. (Id. ¶¶ 111-12.)

Panova and her criminal defense attorney later returned to the police station to file a

citizen complaint against Craddock. (Id. ¶ 113.) Because the officers “incorrectly believed

Plaintiffs were filing an internal affairs complaint,” Panova was “threatened and intimidated by

comments from the officer taking the report that she would be arrested and put in prison.” (Id.

¶¶ 114-15.) Alternatively, she alleges, Craddock was a former firefighter and had a “prior

relationship” with law enforcement members in Bergen County who sought to protect him from

a complaint. (Id. ¶ 116.)

With respect to the officers’ DCPP report, investigators from that agency arrived at

Panova’s home within two hours of her release from Bergen New Bridge. (Id. ¶ 118.) The

DCPP case worker also went to the location in the Palisades Interstate Park where Panova was

arrested. (Id. ¶ 119.) The DCPP dismissed the complaint against Panova and Rivkin as “not

established.” (Id. ¶ 120.) The couple was subjected to “subsequent anonymous reports of child

abuse and neglect made to the [DCPP] that were investigated,” none of which were established

or founded. (Id. ¶¶ 122, 124.) Plaintiffs assert that the anonymous complaints were “made,

instigated, or done in conspiracy with [d]efendants.” (Id. ¶ 123.) With respect to the criminal

charges against Panova, the Bergen County Prosecutor’s Office dismissed or downgraded them.2

(Id. ¶ 126.)

Plaintiffs sent a timely notice of tort claim and ultimately filed the instant federal action

on January 6, 2021. The complaint asserts claims, against all defendants, for false arrest (count

1); malicious prosecution (count 2); abuse of process (count 3); First Amendment retaliation

(count 4); due process violations (count 5); denial of equal protection (count 6); municipal

liability (count 7); supervisory liability (count 8); excessive force (count 9); battery (count 10);

negligence (count 11); negligent hiring, training, and supervision (count 12); a count entitled

“respondeat superior for state law claims against public entity defendants” (count 13);

conspiracy (count 14); aiding and abetting (count 15); a claim under the New Jersey Civil Rights

Act that appears to invoke rights under the New Jersey constitution (count 16); and loss of

consortium (count 17).

Care One and Saunders filed an answer, together with a crossclaim for contribution and

indemnification. (D.E. 3.) Craddock was served with the complaint on May 25, 2022, but has

yet to answer or otherwise respond to it. (D.E. 37.) The PIPPD and the defendant officers

(collectively, the “moving defendants”) have moved pursuant to Rules 12(b)(1) and 12(b)(6) to

dismiss the complaint in its entirety against them and raise seven discrete arguments in support.

(D.E. 15.) Plaintiffs oppose (D.E. 20), and the moving defendants have filed a reply (D.E. 21.)

2 Depositions in the within case have been stayed pending resolution of the remaining criminal

charges. (D.E. 36.)

III. Standard of Review

The moving defendants’ motion attacks the complaint on both jurisdictional and non-

jurisdictional grounds under Rules 12(b)(1) and 12(b)(6).

When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), the Court must first determine whether the movant presents a “facial” or “factual”

attack to jurisdiction. “A facial attack contests the sufficiency of the complaint because of a

defect on its face, whereas a factual attack asserts that the factual underpinnings of the basis for

jurisdiction fails to comport with the jurisdictional prerequisites.” Halabi v. Fed. Nat’l Mortg.

Ass’n, 2018 WL 706483, at *2 (D.N.J. Feb. 5, 2018) (Vazquez, J.) (internal citations and

quotations omitted). Regardless of whether a challenge is facial or factual, however, “the

Plaintiff has the burden to prove that the Court has jurisdiction.” Bd. of Trustees of Trucking

Emps. of N. Jersey Welfare Fund, Inc. v. Caliber Auto Transfer, Inc., 2010 WL 2521091, at *8

(D.N.J. June 11, 2010) (Debevoise, J.). Here, the moving defendants appear to have lodged a

factual attack, arguing that the PIPPD is not subject to this Court’s jurisdiction because it is an

arm of the state. In this regard, the Court need not “presume the truthfulness of plaintiff’s

allegations,” and may instead “evaluat[e] for itself the merits of [the] jurisdictional claims.”

Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (alterations in original) (quoting

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court

must accept as true all allegations in the complaint, as well as all reasonable inferences that can

be drawn therefrom. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). The factual allegations in the complaint must be viewed in the light

most favorable to the plaintiff. See Phillips v. County of Alleghany, 515 F.3d 224, 231 (3d Cir.

2008). To survive a motion to dismiss, a plaintiff must “plead more than the possibility of

relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The Court will

“disregard legal conclusions and ‘recitals of the elements of a cause of action, supported by mere

conclusory statements.’” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)

(quoting Iqbal, 556 U.S. at 678).

IV. Discussion

The moving defendants argue that this matter is subject to dismissal pursuant to the

abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971) in light of the criminal

charges pending against Panova in state court. (D.E. 15-1, Mov. Br. at 40; D.E. 21, Reply Br. at

6.) They further contend that even if Younger abstention is inapplicable, the complaint should be

dismissed against them in its entirety. (Mov. Br. at 8-39; Reply Br. at 2-5.)

A. Younger Abstention Doctrine

Under the Younger abstention doctrine, a district court “has discretion to abstain from

exercising jurisdiction over a particular claim where resolution of that claim in federal court

would offend principles of comity by interfering with an ongoing state proceeding.” Zahl v.

Warhaftig, 655 F. App’x 66, 70 (3d Cir. 2016) (internal citations and quotations omitted).

According to the three-prong test established in this Circuit, Younger abstention is appropriate if:

“(1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings

implicate important state interests; and (3) the state proceedings afford an adequate opportunity

to raise federal claims.” Lui v. Comm’n, Adult Ent., De, 369 F.3d 319, 326 (3d Cir. 2004).

The moving defendants argue, without analyzing any of the factors, that Younger

abstention is appropriate here because “some underlying criminal charges may still be pending

against Panova.” (Mov. Br. at 40.) While the complaint does refer to state criminal proceedings

that remain pending (see Compl. ¶ 126; see also D.E. 35, 36), the moving defendants have not

provided any meaningful information about them, or demonstrated that ongoing state

proceedings “implicate important state interests” or afford plaintiffs “an adequate opportunity to

raise federal claims.” Jaffery v. Atl. Cty. Prosecutor’s Off., 695 F. App’x 38, 40 (3d Cir. 2017)

(quoting Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989)). As such, dismissal on those grounds

is denied.

B. Claims Against the PIPPD

The Court next turns to the moving defendants’ arguments attacking the substance of

plaintiffs’ claims, beginning with the claims specific to the PIPPD.

The moving defendants argue that the PIPPD is entitled to sovereign immunity because it

is considered an arm of the state and is not a “person” subject to suit under Section 1983. The

Eleventh Amendment incorporates a general principle of sovereign immunity that bars citizens

from suing any state in federal court for money damages. See U.S. Const. amend. XI (“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.”). The Supreme Court has held that immunity from

suit extends not just to states, but also to entities that are considered arms of the state. See

Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997); Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984). An entity is considered an arm of the state “when

a judgment against it ‘would have essentially the same practical consequences as a judgment

against the State itself.’” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 545-46 (3d

Cir. 2007), amended on reh’g (Mar. 8, 2007) (quoting Fitchik v. N.J. Transit Rail Operations,

Inc., 873 F.2d 655, 659 (3d Cir. 1989)).

Section 1983 provides a cause of action against a person who, while acting under color of

law, “subjects, or causes to be subjected, any citizen of the United States or other person within

this jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. Because only “persons” are subject to suit under

Section 1983, entities that are considered “arms of the state” cannot be sued for Section 1983

violations. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66-70 (1989).3

The Third Circuit considers three factors, known as the Fitchik factors, when analyzing

whether an entity is an arm of the state for Eleventh Amendment purposes: “(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 (citing Febres v.

Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 2006)). No one factor is dispositive. See

Cooper v. Se. PA Transp. Auth., 548 F.3d 296, 302 (3d Cir. 2008). Rather, each case is to “be

considered on its own terms, with courts determining and then weighing the qualitative strength

of each individual factor in the unique factual circumstances at issue.” Karns v. Shanahan, 879

F.3d 504, 514 (3d Cir. 2018).

The moving defendants argue that application of the Fitchik factors “makes clear” that

the PIPPD—as a subsidiary of the Palisades Interstate Park Commission (the “PIPC”)—is an

arm of the state, which plaintiffs do not directly dispute. (Mov. Br. at 9.) Instead, they claim

that the PIPPD waived its sovereign immunity defense because the PIPC’s charter includes a “to

sue or be sued” clause.4 (D.E 20, Opp. Br. at 11-14.) Because a finding of waiver would obviate

an analysis of the Fitchik factors, the Court will begin with plaintiffs’ waiver argument.

3 The same standard applies under the New Jersey Civil Rights Act. See Estate of Lagano v.

Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 856 (3d Cir. 2014).

4 See N.J.S.A. 32:17-4 (establishing the PIPC as a “joint corporate municipal instrumentality” of

the states of New Jersey and New York, and providing that it “shall have power to sue and be

sued”).

a. Waiver

Plaintiffs primarily rely on the New Jersey Supreme Court’s opinion in Interstate

Wrecking Co. v. Palisades Interstate Park Com., 57 N.J. 342 (1971). There, a private contractor

brought a breach of contract action against the PIPC in New Jersey state court arising from a

contract performed in New York. The PIPC moved to dismiss the complaint, arguing that “the

courts of New Jersey had no jurisdiction over the subject matter of the action or the person of the

defendant.” Id. at 345. The law division found that the “to sue or be sued” clause in the PIPC’s

charter “amount[ed] to a consent by New York that the [PIPC] could be sued in [New Jersey]

courts” and denied the PIPC’s motion to dismiss, which was upheld by the appellate division.

Id. at 345-46. The Supreme Court agreed, holding that “when the New Jersey Legislature

approved the sue and be sued clause in the compact it meant to waive sovereign immunity and to

authorize suits against the [PIPC] generally.” Id. at 346.

The issue in Interstate Wrecking Co. was whether the state of New York had waived its

sovereign immunity to be sued in New Jersey state court by virtue of the “to sue or be sued”

clause in the PIPC’s charter, and the Supreme Court found that it had. Here, plaintiffs argue that

the “to sue or be sued” clause must also be construed as waiving the state of New Jersey’s

Eleventh Amendment immunity from suit in New Jersey federal court. But the Court sees no

viable basis to make that inferential leap. While only three federal cases have cited Interstate

Wrecking, one of them squarely addressed its applicability under factually-analogous

circumstances. In Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35 (2d Cir. 1977), the

plaintiffs brought a civil rights action against the PIPC in New York federal court, alleging that

two park policemen employed by the state of New York violated their constitutional rights when

they ordered the plaintiffs out of their vehicle at gunpoint and conducted a warrantless search.

The PIPC moved to dismiss the complaint on sovereign immunity grounds, which the district

court denied. The Second Circuit reversed on appeal, finding that the PIPC was immune from

suit under the Eleventh Amendment despite the “to sue or be sued” clause in its charter.5

Distinguishing Interstate Wrecking, the court reasoned that it “d[id] not construe the sue-and-be-

sued clause to extend the consent of the states to be sued in the state courts, to a waiver of the

states’ Eleventh Amendment immunity in the federal courts.” Id. at 40 (emphasis added).

The Court agrees with the reasoning in Trotman and finds immunity is not waived here,

and further that plaintiffs have supplied no other basis to support a finding of waiver. 6

Accordingly, it will proceed to analyze the Fitchik factors, recognizing that the burden of

proving their applicability lies with the moving defendants. See Christy v. Pennsylvania Tpk.

Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).

b. Fitchik Factors

i. Funding

The first factor analyzes whether the state of New Jersey would pay for a judgment

entered against the PIPPD. As plaintiffs appear to concede (see Opp. Br. at 10-14), the PIPPD is

a subdivision of the PIPC. See N.J.S.A. 32:14-4.1 to -21. The moving defendants argue that

5 The Second Circuit also recognized the liability provision in the PIPC’s charter, which provides

that neither the state of New Jersey or New York “shall be liable for any torts of the [PIPC] . . . ,

except as provided by the laws of such state.” N.J.S.A. 32:17-9.

6 Plaintiffs’ reliance on Bell v. Bell, 83 N.J. 417 (1980) is also unavailing. There, the New Jersey

Supreme Court addressed whether the Delaware River Port Authority qualified as a “public

entity” under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., in connection with a state

court personal injury lawsuit—not a civil rights lawsuit in federal court. Indeed, the Tort Claims

Act has “repeatedly been held to authorize suit only in state court.” NJSR Surgical Ctr., L.L.C. v.

Horizon Blue Cross Blue Shield of New Jersey, Inc., 979 F. Supp. 2d 513, 519 (D.N.J. 2013)

(McNulty, J.). Accordingly, the Tort Claims Act cannot serve as a waiver to the PIPPD’s

sovereign immunity.

N.J.S.A. 32:14 contains a number of provisions which demonstrate that the state of New Jersey

would “ultimately have to withdraw funds from its treasury for any liability on the part of

PIPPD.” (Mov. Br. at 11.) For example, N.J.S.A. 32:14-1.4(a) provides that the PIPC is to

submit an “annual budget request” to the governor and state legislature as part of the annual

budget request by the New Jersey Department of Environmental Protection (“NJDEP”).

Additionally, pursuant to N.J.S.A. 32:14-29, the PIPC has the authority to “spend such sum or

sums as may be included in the annual appropriation bill for necessary expenses of the [PIPC],

and for carrying out the provisions of this chapter,” so long as they are first approved by the

governor and comptroller.

These provisions, though indicative of the PIPC’s budget allotment and authority to

spend state funds under certain circumstances, do not clearly demonstrate that the state of New

Jersey is obligated to pay a judgment entered against the PIPPD. See Bowers, 475 F.3d at 547

(“The appropriate question to ask . . . is whether the State is obligated to pay or reimburse the

[defendant] for its debts.”). Accordingly, the first Fitchik factor tilts the scale slightly against

immunity.

ii. State Law Status

The second Fitchik factor analyzes the agency’s status under state law, including “how

state law treats the agency generally, whether the entity is separately incorporated, whether the

agency can sue or be sued in its own right, and whether it is immune from state taxation.”

Fitchik, 873 F.2d at 659.

The PIPC is a creature of interstate compact between the states of New Jersey and New

York, see N.J.S.A. 32:14-1.3, and the relevant statutory scheme clearly demonstrates that New

Jersey treats the PIPPD (as a subdivision of the PIPC) as an instrumentality of the state. The

PIPC’s charter provides that the entity is a “joint corporate municipal instrumentality of the state

of New York and the state of New Jersey,” and shall be “deemed to be performing governmental

functions of the two states.” N.J.S.A. 32:17-4 (emphases added). In that capacity, the New

Jersey state board7 conferred certain “functions, jurisdiction, rights, powers and duties” onto it,

as well as all “legal and equitable title to or in” the property under its control. N.J.S.A. 32:17-5,

6. Furthermore, as the moving defendants point out, the PIPC exists within the NJDEP and is

entitled to certain benefits provided to it, including the provision of legal services from the state

Attorney General. See N.J.S.A. 32:14-1.3, 1.6. The PIPC is also required to submit an annual

report to the government and legislature setting forth “a complete operating and financial

statement” of its activities for the preceding calendar year. N.J.S.A. 32:14-1.11. PIPC

employees who are paid using funds appropriated by the state are considered state employees for

workers’ compensation purposes and are qualified for membership in the state’s retirement

program. N.J.S.A. 32:14-4. And the PIPC is included in the New Jersey Tort Claims Act’s

definition of the term “State” with respect to its employees, property, and activities within the

state of New Jersey. See N.J.S.A. 59:1-3.

Although, as explained supra, the PIPC’s charter includes a “to sue or be sued clause,”

see N.J.S.A. 32:17-4, the second Fitchik factor leans in favor of immunity.

iii. Autonomy

The third Fitchik factor focuses on “the degree of independence from state control an

entity exercises.” Bowers, 475 F.3d at 548. While the PIPC has some degree of autonomy as a

7 The “New Jersey state board” is defined as “the park or parks in the state of New Jersey now

under the jurisdiction, management or control of commissioners of the Palisades Interstate

[P]ark, a body politic created pursuant to” state law. N.J.S.A. 32:17-3.

“separate agency charged with the responsibility of maintaining this interstate park,” N.J.S.A.

32:14-1.1, the relevant statutory scheme shows that it is tightly constrained by state authority.

As a general matter, the state board is empowered to confer “functions, jurisdiction,

rights, powers and duties” on the PIPC, and the state may “withdraw, modify, alter or amend”

them within its territorial limits. N.J.S.A. 32:17-6. The PIPC is comprised of ten members, five

from New Jersey and five from New York, who are “appointed by the governor of the state of

which his predecessor was a citizen.” N.J.S.A. 32:17-4. Each member must take an oath of

office, which is to “be filed in the office of the secretary of state of such state.” Id. In the event

of a premature vacancy, the governor is empowered to appoint a new member “with the approval

of the senate of such state.” Id.; see also N.J.S.A. 32:17-11. The governor may also remove

members, after giving them notice of the charges against them and an opportunity to be heard, if

they are negligent or engage in other misconduct. N.J.S.A. 32:17-4.

The moving defendants have also drawn the Court’s attention to several provisions

relating to funding which weigh against PIPPD’s independence. As it relates to gifts and

bequests, while the PIPC is entitled to use them in its “discretion in either state for any park

purpose,” as well as to “retain and use all revenue and income arising solely from [them],” the

state legislature is empowered to “prescribe other terms and conditions upon which or purposes

for which [they] may be accepted for use in such state or used in such state or prescribe a

different manner of administering [them] and the disposition of all revenues or income arising

therefrom.” N.J.S.A. 32:17-7(1). To that end, the state may require the PIPC to provide it with

“reports” and “estimates of revenue and expenditures.” N.J.S.A. 32:17-7(2). As it relates to

spending, the PIPC is required to submit an “annual budget request” to the governor and state

legislature as part of the NJDEP’s annual budget request. N.J.S.A. 32:14-1.4(a). And while the

PIPC has the authority to “spend such sum or sums as may be included in the annual

appropriation bill for necessary expenses of the [PIPC], and for carrying out the provisions of

this chapter,” they must first be approved by the governor and comptroller. N.J.S.A. 32:14-29.

Furthermore, the PIPC is not permitted to “pledge the credit of either state except by and with the

authority” of the state legislature. N.J.S.A. 32:17-8.

Accordingly, the final Fitchik factor leans in favor of sovereign immunity.

* * *

Because the factors, on balance, weigh in favor of sovereign immunity, the Court finds

that the PIPPD is an “arm of the state” entitled to Eleventh Amendment immunity, and is not a

“person” subject to suit under 42 U.S.C. § 1983.8 Though few federal courts have addressed the

PIPC and/or PIPPD’s entitlement to sovereign immunity, the courts that have tackled the issue

have reached the same conclusion. See Saint-Jean v. Cty. of Bergen, 509 F. Supp. 3d 87, 99, 114

(D.N.J. 2020) (McNulty, J.) (dismissing § 1983 and pendant state law claims against the PIPC

and PIPPD on sovereign immunity grounds, adding that because the New Jersey Tort Claims Act

allows suits against public entities and their employees in state court but does not operate as an

Eleventh Amendment waiver, “the plaintiff’s choice of a federal forum may have been ill-

advised”); Trotman, 557 F.2d at 38 (Eleventh Amendment immunity applied to the PIPC

8 In light of this finding, the Court need not reach plaintiffs’ barebones argument that the PIPPD

is subject to suit as a municipality of the state of New Jersey. See Monell v. New York City Dept.

of Social Services, 436 U.S. 658, 690 (1978) (“Congress did intend municipalities and other local

government units to be included among those persons to whom § 1983 applies.”). The Court

notes for completeness, however, that with the exception of pointing to one line in the PIPC’s

charter indicating that it is to be a “joint corporate municipal instrumentality of both the state of

New York and the state of New Jersey,” see N.J.S.A. 32:17-4, plaintiffs have offered no

authority to support their position.

because, “in reality,” suit against it was “one against the State of New York”). Accordingly, the

federal and state law claims asserted against the PIPPD are dismissed with prejudice.

C. Claims Against the Defendant Officers

a. False Arrest and Malicious Prosecution Claims (Counts 1 and 2)

The Court turns to plaintiffs’ claims against the defendant officers in their individual

capacities, which are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21,

20-21 (1991); Kirkland v. DiLeo, 581 F. App’x 111, 116 n. 11 (3d Cir. 2014).

The moving defendants first argue that plaintiffs’ false arrest (count 1) and malicious

prosecution (count 2) claims must be dismissed because the defendant officers “had probable

cause to arrest and prosecute her for endangering the welfare of a child and obstructing the

administration of law.” (Mov. Br. at 19.) As the moving defendants point out, “[b]oth claims for

false arrest and claims for malicious prosecution require a showing of a lack of probable cause.”

Born v. Aberdeen Police Dep’t, 2009 WL 2905433, at *2 (D.N.J. Sept. 8, 2009) (Thompson, J.),

aff’d sub nom. Born v. Aberdeen Police Dep’t, 397 F. App’x 801 (3d Cir. 2010); see Groman v.

Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (§ 1983 false arrest claim requires inquiry

into whether “arresting officers had probable cause to believe the person arrested had committed

the offense” (quoting Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988)); Johnson v.

Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (§ 1983 malicious prosecution claim requires plaintiff to

demonstrate, among other things, that the defendant initiated a criminal proceeding “without

probable cause”). The issue of “probable cause in civil claims for false arrest and malicious

prosecution is generally a question of fact.” Campanello v. Port Auth. of New York & New

Jersey, 590 F. Supp. 2d 694, 702 (D.N.J. 2008) (Greenaway, J.) (citing Montgomery v. De

Simone, 159 F.3d 120, 124 (3d Cir. 1998)).

Probable cause does not “demand[] proof of guilt beyond a reasonable doubt.” Dempsey

v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016). Instead, it exists if there is a “fair

probability that the person committed the crime at issue.” Id. (quoting Wilson v. Russo, 212 F.3d

781, 789 (3d Cir. 2000)). That is, there is probable cause to arrest “‘when the facts and

circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is being committed by the person to be

arrested.’” Id. (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995)). In the

malicious prosecution context, probable cause “means reasonable grounds for suspicion

supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious

[person] in the belief that the accused is guilty of the offense with which he is charged.” Trabal

v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (quoting Lind v. Schmid,

67 N.J. 255, 263 (1975)).

Here, the complaint alleges that Panova and her children entered the park through a

downed fence and climbed a hill to access a commonly-known hiking trail. (Id. ¶¶ 23, 26-27,

29.) They did so “without incident” and could have “walked back down [the hill] without any

appreciable risk.” (Id. ¶¶ 29, 59.) There was no signage indicating that the downed fence could

not be used, and Panova had “observed other individuals using” it. (Id. ¶¶ 24, 28.) When the

defendant officers responded to the scene, Panova was already upset because Craddock, a

stranger who was unmasked, was holding her four-year-old son “without consent or

authorization” and would not release him. (Id. ¶¶ 42-43, 46-49.) The defendant officers, who

were also unmasked, refused to allow Panova and her children to walk back down the hill and

rejected the assistance of the children’s father. (Id. ¶¶ 55, 63, 71.) Instead, they “physically

restrain[ed]” her “with force on the cliff,” and allowed Craddock to “forcefully carr[y] [her]

down the ladder” they had called to the scene. (Id. ¶¶ 65, 69.) These facts, if true, create a

factual issue as to whether probable cause existed for Panova’s arrest or the subsequent charges

against her of child endangerment and obstruction of the law. While the moving defendants

justify their actions because Panova was “the only person at the scene who appears to have not

considered the situation an emergency” (see Mov. Br. at 32), this does not resolve the basic issue

of whether an emergency existed, which, of course, awaits discovery and possibly the

determination of the factfinder. See Campanello, 590 F. Supp. 2d at 703-04 (denying motion to

dismiss false arrest and malicious prosecution claims because, at the “early juncture” of the case,

the parties had conducted “little discovery” as to probable cause at the time of arrest).

Accordingly, the false arrest and malicious prosecution allegations are sufficient to withstand the

instant motion.

b. Excessive Force (Count 9)

The moving defendants next argue that plaintiffs’ excessive force (count 9) claim must be

dismissed. The issue of whether officers used “excessive force in the course of an arrest is

properly analyzed under the Fourth Amendment.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.

1999). To state a claim for excessive force under the Fourth Amendment, “a plaintiff must show

that a ‘seizure’ occurred and that it was unreasonable.” Noble v. City of Camden, 112 F. Supp.

3d 208, 227 (D.N.J. 2015) (Simandle, J.) (quoting Brower v. County of Inyo, 489 U.S. 593, 599

(1989)). Force is considered excessive when “it is objectively unreasonable based on the totality

of the circumstances.” White v. City of Vineland, 500 F. Supp. 3d 295, 303 (D.N.J. 2020)

(Wolfson, J.) (citing Groman v. Twp. Of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)). When

analyzing whether force is excessive, courts look to a number of factors, including:

the facts and circumstances of each particular case; the severity of the crime at

issue; whether the suspect poses an immediate threat to the safety of the officers or

others; whether he is actively resisting arrest or attempting to evade arrest by flight;

the duration of the action; whether the action takes place in the context of effecting

an arrest; the possibility that the suspect might be armed; and the number of persons

with whom an officer must contend at one time.

Id. (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

Here, the complaint alleges that when the defendant officers arrived at the scene, there

were at least three adults present—Craddock, the woman he was with, and Panova—as well as

Panova’s two children. The complaint does not allege that Panova was attempting to flee; to the

contrary, Panova remained at the scene because Craddock was holding her son “without consent

or authorization.” (Id. ¶¶ 45, 47-50.) Nor is there any allegation that Panova was armed or could

have been armed. Against that backdrop, reasonable jurors could find for Panova on her

allegations that the officers’ use of force—which included “physically restrain[ing]” Panova

“with force on the cliff” and then “throw[ing] [her] to the ground” and dragging her “for some

distance down the cliff” (id. ¶¶ 65, 67-68)—was excessive. Accordingly, the complaint

plausibly alleges an excessive force claim against the officers, and the motion to dismiss

plaintiffs’ excessive force claim must be denied.

c. Abuse of Process, First Amendment Retaliation, Due Process, Equal

Protection, and Conspiracy Claims (Counts 3, 4, 5, 6, and 14)

The moving defendants next argue that plaintiffs’ abuse of process (count 3), first

amendment retaliation (count 4), due process (count 5), equal protection (count 6), and

conspiracy (count 14) causes of action must be dismissed for failure to state a claim under Rule

12(b)(6). The Court will address each cause of action in turn, mindful of the fact that plaintiffs

have failed to offer specific arguments regarding the viability of their abuse of process, equal

protection, and conspiracy causes of action. (See generally Opp. Br. at 16-17.)

i. Abuse of Process (Count 3)

A cause of action for abuse of process requires the plaintiff to demonstrate the

defendant’s “(1) ulterior motive; and (2) ‘further act after the issuance of process representing

the perversion of the legitimate use of process.’” Zebrowski v. Wells Fargo Bank, N.A., 657 F.

Supp. 2d 511, 517 (D.N.J. 2009) (Rodriguez, J.) (quoting Tare v. Bank of Am., 2009 WL 799236,

at *7 (D.N.J. Mar. 24, 2009) (Linares, J.)). “Unlike a malicious prosecution claim, which

concerns the motives for initiating process, an abuse of process claim must arise from conduct

that occurred after process was initiated.” Esposito v. Little Egg Harbor Twp., 2012 WL

1495468, at *2 (D.N.J. Apr. 27, 2012) (Wolfson, J.). In other words, “[a]n abuse of process

claim does not turn on whether the process was legitimately or illegitimately initiated, but rather

on whether after the initiation, it was used for some improper purpose.” Nieves v. Ortiz, 2008

WL 4004940, at *10 (D.N.J. Aug. 20, 2008) (Debevoise, J.).

As a preliminary matter, the moving defendants contend that the abuse of process claim

should be dismissed because “[t]he theory behind an abuse of process claim is that the process

(here, Panova’s arrest and being charged) was lawfully initiated,” and plaintiffs’ theory is “that

Panova’s arrest was illegitimate from the start.” (Mov. Br. at 28-29.) However, claims for abuse

of process and malicious prosecution are “not mutually exclusive”; as such, plaintiffs’ argument

that the defendant officers lacked probable cause to arrest and charge Panova does not

automatically foreclose an abuse of process claim. Batiz v. Brown, 2013 WL 1137531, at *3

(D.N.J. Mar. 14, 2013) (Bumb, J.); see Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977)

(finding that abuse of process and malicious prosecution claims “are not mutually exclusive, and

that the presence or absence of probable cause is irrelevant to malicious abuse of process”).

Turning to the substance of plaintiffs’ abuse of process claim, the Court finds that the

allegations, though imperfect, are sufficient to survive a Rule 12(b)(6) motion. Plaintiffs allege

that the defendant officers “committed an abuse of process” after Panova was charged with child

endangerment and obstruction, and that they did so by “falsely reporting suspected child abuse”

to the DCPP. (See Compl. ¶ 158.) Specifically, they allege that on the day of the incident, the

defendant officers filed a report with the DCPP “in retaliation to . . . Panova’s refusal to accept

ambulance treatment.” (Id. ¶ 95.) The DCPP investigated the allegations by visiting Panova’s

home and the Palisades Interstate Park, and ultimately dismissed the complaint as “not

established.” (Id. ¶¶ 117-21.) Plaintiffs further allege that despite the “not established” finding,

“subsequent anonymous reports of child abuse” were made to the DCPP by or “in conspiracy

with” the defendant officers, none of which were deemed established. (Id. ¶¶ 122-25.) And by

alleging that the reports were “false and malicious” and that the defendant officers acted

“intentionally, maliciously or in reckless disregard” of Panova’s constitutional rights (see id. ¶¶

117, 127), plaintiffs adequately plead an ulterior motive. See Phillips v. New Jersey Transit,

2021 WL 1661087, at *10 (D.N.J. Apr. 28, 2021) (Cecchi, J.) (dismissing abuse of process claim

where plaintiff failed to allege “specific instances following [his] arrest that could lead the Court

to infer that [defendants] acted with an ulterior motive,” such as an allegation that defendants

“lied during their testimony” at a state hearing); Pierre v. Treasury Dep’t, 2018 WL 5801549, at

*9 (D.N.J. Nov. 5, 2018) (Linares, J.) (plaintiff failed to allege viable abuse of process claim

where he did not “set forth any facts showing that the [defendants] intentionally withheld

information or elicited evidence that they knew to be false”).

Accordingly, plaintiffs’ abuse of process cause of action as to the defendant officers

survives the instant motion.

ii. First Amendment Retaliation (Count 4)

To plead a First Amendment retaliation claim, a plaintiff must allege that “(1) he engaged

in constitutionally protected conduct, (2) the defendant engaged in retaliatory action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link

existed between the constitutionally protected conduct and the retaliatory action.” Williams v.

City of Allentown, 804 F. App’x 164, 167 (3d Cir. 2020) (quoting Baloga v. Pittston Area Sch.

Dist., 927 F.3d 742, 752 (3d Cir. 2019)). “[T]he key question in determining whether a

cognizable First Amendment claim has been stated is whether ‘the alleged retaliatory conduct

was sufficient to deter a person of ordinary firmness from exercising his First Amendment

rights.’” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (quoting McKee v. Hart, 436

F.3d 165, 170 (3d Cir. 2006)).

Here, the allegations in the complaint fall short of asserting a viable First Amendment

retaliation claim against the defendant officers. The complaint alleges that Panova sought to

“file a citizen complaint against Defendant Craddock,” but that an unnamed officer at the police

department “threatened and intimidated” her and commented that “she would be arrested and put

in prison.” (Compl. ¶ 113, 115.) The complaint further alleges that this act was done “to

intimidate and/or retaliate[e] against [p]laintiffs for” exercising their constitutional rights—

namely, to “make known their opinions to their representatives and petition the government for

redress.” (Id. ¶ 170.) But Panova has asserted constitutional claims against Craddock in this

lawsuit; her speech was not “chilled” and she demands judicial redress, demonstrating that

whatever pushback she may have received in and around her decision to file a citizen complaint,

it failed to deprive her of her constitutional rights. Further, plaintiffs have failed to allege that

the defendant officers committed the retaliatory act. See Iqbal, 556 U.S. at 676 (“[A] plaintiff

must plead that each Government-official defendant, through the official’s own individual

actions, has violated the constitution.”). For the above reasons, plaintiffs’ First Amendment

retaliation claim against the defendant officers cannot survive.9

iii. Due Process (Count 5)

The Court next turns briefly to plaintiffs’ due process claim, which appears to be

premised on Panova’s alleged denial of the right to counsel during custodial questioning. In the

complaint, plaintiffs allege that defendants “fail[ed] to permit . . . Panova [to] receive her

constitutional right to counsel” while she was in custody. (Compl. ¶ 175; see id. ¶¶ 85-86, 88-

90.) However, they do not allege that Panova made any incriminating statements to the

defendant officers. To the contrary, and fatal to this claim, the complaint states that Panova

“refused to provide information without the opportunity to consult an attorney,” and “exercised

her constitutional right to ignore [their] questions.” (Id. ¶¶ 88-89.)

It is well settled that there is no “freestanding Fifth Amendment claim for denial of the

right to counsel during questioning.” Stora v. Brady, 2014 WL 5148723, at *5 (D.N.J. Oct. 14,

2014) (Hillman, J.). Rather, “[t]he right protected under the Fifth Amendment is the right not to

be compelled to be a witness against oneself in a criminal prosecution,” and the right to counsel

during a custodial interrogation recognized in Miranda v. Arizona, 384 U.S. 436 (1966) is

“merely a procedural safeguard, and not a substantive right.” Giuffre v. Bissell, 31 F.3d 1241,

9 In their opposition brief, plaintiffs argue that they engaged in other constitutionally-protected

conduct—i.e., complaining to the defendant officers about Craddock’s conduct while at the

scene, and later requesting counsel—that resulted in retaliation by the defendant officers. (Opp.

Br. at 23-24.) But the allegations are not anchored with facts; instead plaintiffs describe

arguably intimidating and threatening behavior that the complaint seeks to place in a

constitutional bucket. A First Amendment retaliation claim requires more, particularly when

plaintiffs have not missed their chance to seek judicial redress on account of conduct by

defendants.

1256 (3d Cir. 1994). Because there is no allegation in the complaint that the defendant officers

elicited incriminating statements from Panova without counsel present, plaintiffs’ due process

cause of action is dismissed.

iv. Equal Protection (Count 6)

The Fourteenth Amendment provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. A prima facie equal

protection claim under Section 1983 requires a plaintiff to “prove the existence of purposeful

discrimination.” Chambers ex rel. Chambers v. Sch. Dist. Of Philadelphia Bd of Educ., 587 F.3d

176, 196 (3d Cir. 2009) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.

1990)). Specifically, a plaintiff must prove that s/he was a “member[] of a protected class,” and

“received different treatment than that received by other similarly-situated individuals.” Oliveira

v. Twp. of Irvington, 41 F. App’x 555, 559 (3d Cir. 2002); see Kuhar v. Greensburg-Salem

School Dist., 616 F.2d 676, 677 n. 1 (3d Cir. 1980) (plaintiff asserting equal protection cause of

action must allege that “he is receiving different treatment from that received by other

individuals similarly situated”). Notably, a plaintiff bringing an equal protection claim “must

show intentional discrimination against him because of his membership in a particular class, not

merely that he was treated unfairly as an individual.” Pollock v. City of Ocean City, 968 F.

Supp. 187, 191 (D.N.J. 1997) (Irenas, J.) (internal citations and quotations omitted).

Here, plaintiffs fall far short of asserting a prima facie equal protection claim. They

allege that the defendant officers engaged in “the selective enforcement of legal standards”

against Panova because she is “a female of Ukrainian descent.” (Compl. ¶ 183.) However, they

have offered no allegation, specific or otherwise, which would allow the Court to infer that the

defendant officers acted with discriminatory intent. For example, plaintiffs have not alleged that

the defendant officers treated males or non-Ukrainian individuals more favorably under similar

circumstances; nor have they offered any evidence indicative of purposeful discrimination, such

as the defendant officers’ use of gendered or nationality-based epithets during Panova’s arrest

and detention. See Benjamin v. E. Orange Police Dep’t, 937 F. Supp. 2d 582, 596 (D.N.J. 2013)

(Martini, J.) (dismissing equal protection claim where complaint “include[d] no allegations

whatsoever of purposeful discrimination”); Bell v. Sandy, 2013 WL 4067960, at *4 (D.N.J. Aug.

12, 2013) (Rodriguez, J.) (dismissing equal protection cause of action where plaintiff “ma[de] no

statement about the treatment of other” similarly-situated individuals). Accordingly, any equal

protection claim against the defendant officers must be dismissed.

v. Conspiracy (Count 14)

Finally, plaintiffs assert a cause of action for conspiracy to deprive Panova of her civil

rights, which is cognizable under both 42 U.S.C. § 1985(3) and New Jersey law. A plaintiff who

was injured by a conspiracy formed “for the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws” may assert a claim under Section 1985(3). Farber v. City of

Paterson, 440 F.3d 131, 134 (3d Cir. 2006). To state a cognizable Section 1985(3) claim, “a

plaintiff must allege: (1) a conspiracy of two or more persons; (2) motivated by racial or class-

based discriminatory animus designed to deprive, directly or indirectly, any person or class of

persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an

injury to person or property or the deprivation of any right or privilege of a citizen of the United

States.” Phifer v. Sevenson Env’t Servs., Inc., 619 F. App’x 153, 155 (3d Cir. 2015).

In New Jersey, “[a] civil conspiracy is a combination of two or more persons acting in

concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal

element of which is an agreement between the parties to inflict a wrong against or injury upon

another, and an overt act that results in damage.” Sunkett v. Misci, 183 F. Supp. 2d 691, 722

(D.N.J. 2002) (Orlofsky, J.) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268

N.J. Super. 337, 364 (App. Div. 1993)). There can be no claim for civil conspiracy “in the

absence of an underlying wrong.” Id.

Here, plaintiffs allege that two or more persons deprived Panova of her civil rights, which

caused her mental and physical suffering. (Compl. ¶ 230, 232.) They also allege—adequately,

as the Court determined in Section (IV)(C)(a) supra—that the defendant officers falsely arrested

and maliciously prosecuted her. (Id. ¶¶ 153, 230.) Plaintiffs’ remaining civil conspiracy

allegations, however, miss the mark under both federal and state law. For example, while

plaintiffs allege in a conclusory fashion that the defendant officers entered into an “agreement”

to deprive Panova of her civil rights (see, e.g., id. ¶ 230), they have failed to assert any facts

about that “agreement,” or offer information which would otherwise suggest that the defendant

officers conspired to deprive her of her civil rights. See D’Agostino v. Wilson, 2019 WL

5168621, at *4 (D.N.J. Oct. 11, 2019) (Kugler, J.) (dismissing conspiracy claim where complaint

did not “allege[] facts suggesting that the Secretary of the Air Force conspired with [another] to

terminate him”); see also Beauvil v. City of Asbury Park, 2018 WL 2455928, at *5 (D.N.J. June

1, 2018) (Thompson, J.) (dismissing civil conspiracy cause of action premised on “conclusory

allegations”). Furthermore, if plaintiffs are asserting a Section 1985(3) conspiracy, they have

failed to allege that the defendant officers were “motivated by racial or class-based

discriminatory animus,” as explained in Section IV(C)(c)(iv) supra. See Phifer, 619 F. App’x at

155. In light of these deficiencies, the civil conspiracy cause of action as to the defendant

officers must be dismissed.

* * *

Having determined that plaintiffs’ First Amendment retaliation (count 4), due process

(count 5), equal protection (count 6), and conspiracy (count 14) claims are subject to dismissal as

to the defendant officers, the Court must next analyze whether plaintiffs should be given leave to

amend their deficiencies. Although plaintiffs have not sought leave to amend in connection with

the instant motion, Fed. R. Civ. P. 15(a)(2) provides that leave to amend should be freely given

“when justice so requires.” Accordingly, “inadequate complaints should be dismissed without

granting leave to amend only if the amendment would be inequitable or futile.” Grayson v.

Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002). “‘Futility’ means that the complaint, as

amended, would fail to state a claim upon which relief could be granted.” In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); see Klotz v. Celentano Stadtmauer &

Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 2021) (amendment would be futile “if the

amended complaint would fail to state a claim for relief under Rule 12(b)(6)”).

Here, the allegations in the complaint arrange themselves into two categories: those

stemming from the events that transpired on the hills of the Palisades Interstate Park, and those

that occurred after Panova’s arrest, mainly at the police station. As explained supra, the first set

of allegations plead viable claims for excessive force and false arrest, against the defendant

officers. However, with the exception of the malicious prosecution and abuse of process claims,

allegations about the moving defendants’ conduct after Panova was arrested and taken from her

family members are not so well defined. To be sure, amid what appears to be some considerable

chaos at the police station, plaintiffs have alleged that the defendant officers ignored Panova’s

requests for water and the toilet, and refused to provide her husband with pertinent information.

While unclear, there were apparent efforts to question Panova before she had a lawyer by her

side, and the facts about criminal charges and the complaint to the DCPP taken in the best light

suggest overreaching. But these facts are better viewed through the lens of the constitutional

claims that survive this motion; they do not support the conclusory contentions that plaintiffs

were retaliated against for exercising their First Amendment rights, or were denied due process

and equal protection of the law. And the claim of conspiracy is fatally deficient for the reasons

stated above. The Court has construed plaintiffs’ allegations liberally as required, but it cannot

allow amendment where the rudimentary elements of a claim are lacking from the complaint.

Accordingly, counts 4, 5, 6, and 14 are dismissed with prejudice.

d. Qualified Immunity and Good Faith Immunity Under N.J.S.A. 59:3-3.

Unremarkably, the moving defendants seek dismissal of the claims against the defendant

officers on the basis of both federal qualified immunity and good faith immunity under N.J.S.A.

59:3-3 of New Jersey’s Tort Claims Act.

Qualified immunity “shields government officials from civil damages liability unless the

official violated a statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012); accord Thomas v. Tice,

948 F.3d 133, 141 (3d Cir. 2020). The doctrine aims to balance “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably,” Pearson v.

Callahan, 555 U.S. 223, 231 (2009), and affords “‘ample room for mistaken judgments’ by

shielding ‘all but the plainly incompetent or those who knowingly violate the law,’” Olson v.

Ako, 724 F. App’x 160, 164 (3d Cir. 2018) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

“The qualified immunity analysis is a two-step process, which a court may address in either

order according to its discretion.” Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 986

(3d Cir. 2014). The Court decides “whether the facts, taken in the light most favorable to

[plaintiffs], establish that the [defendants’] conduct ‘violated a constitutional right.’” Id.

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). It also determines “whether that right was

‘clearly established’ at the time of the challenged conduct.” Id. “‘To be clearly established, a

right must be sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.’” Thomas, 948 F.3d at 141 (quoting Reichle, 566 U.S. at 664).

Similarly, New Jersey’s Tort Claims Act, which governs tort claims against public

employees, shields them from liability if they “act[] in good faith in the execution or

enforcement of any law.”10 N.J.S.A. 59:3-3. See Rosario v. City of Union City Police Dep’t,

131 F. App’x 785, 789 (3d Cir. 2005) (“Generally, public officials engaged in enforcing the law

will be immunized for negligent actions undertaken in good faith.”). For good faith immunity

under N.J.S.A. 59:3-3, “a public employee ‘must establish that his or her acts were objectively

reasonable or that he or she performed them with subjective good faith.’” Mills v. Nelson, 2021

WL 3421712, at *5 (D.N.J. Aug. 5, 2021) (Bartle, J.) (quoting Leang v. Jersey City Bd. of Educ.,

198 N.J. 557, 582 (2009)). Notably, “[t]he same ‘objective reasonableness’ standard that is used

to determine whether a defendant enjoys qualified immunity from actions pursuant to 42 U.S.C.

§ 1983 is used to determine questions of good faith arising under N.J.S.A. 59:3-3.” Brown v.

Haddon Twp., 2021 WL 2821199, at *8 (D.N.J. July 7, 2021) (Hillman, J.). The subjective

component, on the other hand, requires an analysis of whether the public employee’s intentions

were “permissible.” Mills, 2021 WL 3421712, at *6.

The Court recognizes that “[w]hile early resolution of qualified immunity issues is

desirable, factual issues or factual uncertainty may make an assessment impossible at the

complaint stage.” Saint-Jean, 509 F. Supp. at 110. That factual uncertainty is at the forefront

10 However, N.J.S.A. 59:3-3 does not “exonerate[] a public employee from liability for false

arrest or false imprisonment.”

here. Indeed, the moving brief on this motion raises arguments about whether what plaintiff

alleged occurred actually happened at all—a factual issue if ever there was one. Accordingly, the

Court cannot determine at this juncture whether the defendant officers are entitled to qualified or

good faith immunity. See Harris v. Zyskowski, 2013 WL 6669186, at *6 (D.N.J. Dec. 18, 2013)

(Hillman, J.) (denying motion to dismiss on qualified immunity grounds, where court was “not

prepared to hold, as a matter of law, that [defendant’s] behavior was reasonable under the

circumstances as pled in the Complaint”); see also Curley v. Klem, 298 F.3d 271, 278 (3d Cir.

2002) (“[W]hile we have recognized that it is for the court to decide whether an officer’s conduct

violated a clearly established constitutional right, we have also acknowledged that the existence

of disputed, historical facts material to the objective reasonableness of an officer’s conduct will

give rise to a jury issue.”). The motion to dismiss this complaint on the basis of qualified

immunity is therefore denied.

V. Conclusion

For the reasons set forth above, the motion (D.E. 15) is granted insofar as all counts

against the PIPPD are dismissed with prejudice, as are counts 4, 5, 6, and 14 against the

defendant officers.11 The motion is otherwise denied.

An appropriate order will issue.

Date: June 28, 2022 /s/ Katharine S. Hayden

Katharine S. Hayden, U.S.D.J.

11 Because the moving defendants have not specifically challenged the remaining counts against

the defendant officers, the Court has not addressed them.