# RAMNANAN v. KEIFFER

> District Court, D. New Jersey · March 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10275123

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating “[t]he decision to initiate a prosecution is at the core of a prosecutor’s judicial role,” and consequently, is protected by absolute immunity

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DR. TERRY RAMNANAN,

Plaintiff,
Civil Action No. 20-12747 (ZNQ) (LHG)

v.
MEMORANDUM OPINION

COLLIN KEIFFER, ESQ., et al.,

Defendants.

QURAISHI, District Judge

This matter comes before the Court upon Defendants Colin Keiffer (“Keiffer”), Wendy Berg
(“Berg”), Grace Proetta (“Proetta”) and John Campanella’s (“Campanella”) (collectively “State
Defendants”) Motion to Dismiss Plaintiff Dr. Terry Ramnanan’s (“Plaintiff”) Second Amended
Complaint (ECF No. 77), Defendants Ronald Hayek, D.C. (“Hayek”) and Union Wellness Center
P.A. LLC’s (“Union Wellness”) (collectively “Hayek Defendants”) Motion to Dismiss Plaintiff’s
Second Amended Complaint (ECF No. 87), and Defendant Adam Awari, D.C. (“Awari”) and
Advanced Chiro Spine Center P.C.’s (“Advanced Chiro”) (collectively “Awari Defendants”)
Motion to Dismiss Plaintiff’s Second Amended Complaint (ECF No. 81). Plaintiff opposed all
motions (ECF Nos. 95, 96, 100), and State Defendants (ECF No. 103) and Hayek Defendants
replied (ECF No. 104). After careful consideration of the Parties’ submissions, the Court decides
the Parties’ Motions without oral argument pursuant to Local Civil Rule 78.1. For the reasons
outlined below, Count One of Plaintiff’s Second Amended Complaint is dismissed without
prejudice and Counts Two and Three are dismissed with prejudice. The Court declines to exercise
supplemental jurisdiction over the remaining state law claims in this matter.
I. BACKGROUND1
A. Factual Background
The Court, cognizant it writes for the benefit of parties familiar with this matter, adopts and
incorporates the factual background set forth in the Court’s previous Opinion dismissing Plaintiff’s

First Amended Complaint. (Op. 2-10, ECF No. 56.) In its Opinion today, the Court focuses only
on additional allegations brought in Plaintiff’s Second Amended Complaint and whether such
additions render Plaintiff’s Second Amended Complaint capable of surviving Defendants’ Motions
to Dismiss.2
B. The Court’s Previous Opinion
On June 30, 2021, this Court dismissed all counts against State Defendants, Hayek
Defendants, and Awari Defendants without prejudice. (See generally id.)
1. State Defendants

As against State Defendants, Plaintiff’s First Amended Complaint brought six federal
counts and five state law counts. (Id. at 8-9.) The six federal counts were: (1) violation of 42 U.S.C.
§ 1983 for the fabrication of evidence; (2) violation of § 1983 for malicious prosecution;
(3) violation of § 1983 for malicious abuse of process against the State Defendants; (4) violation
of § 1983 for inducement of false testimony; (5) conspiracy to violate Plaintiff’s civil rights; and
(6) violation of § 1983 for “stigma plus.” (Id.)

1 For the purpose of considering the instant motions, the Court accepts all factual allegations in the
Complaint as true. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

2 While the Court adopts the entirety of the Court’s previous Opinion’s background, the Court
changes the citations of relevant facts to comport with their location within Plaintiff’s Second
Amended Complaint.
In evaluating federal counts one through five, the Court found that State Defendants were
protected from all counts by absolute immunity. (Id. at 18-19.) Specifically, the Court found that
“although Plaintiff asserts [] State Defendants’ acted solely in an investigative capacity, the crux
of Plaintiff’s Amended Complaint is that [] State Defendants’ impropriety and evidence fabrication

in preparation for and during grand jury proceedings led to his indictment.” (Id. at 18.) As the
Court found that Plaintiff’s allegations were directed at State Defendants’ prosecutorial functions,
as opposed to any investigatory function, absolute immunity attached. (Id.) As to federal count six,
the Court found that Plaintiff failed to plausibly allege a “stigma plus” claim under § 1983 where
he only pled the alleged loss of private employment, which is not a deprivation of a protected
interest under the Constitution or state law. (Id. at 20-21.) As such, all federal counts were
dismissed against State Defendants.
Plaintiff also brought five state law counts against State Defendants: (1) violation of N.J.
Stat. Ann. §§ 6:10-1, et seq., for fabrication of evidence; (2) violation of N.J. Stat. Ann. §§ 6:10-1,
et seq., for malicious prosecution; (3) violation of N.J. Stat. Ann. §§ 6:10-1, et seq., for deprivation

of Plaintiff’s substantive due process rights; (4) violation of N.J. Stat. Ann. §§ 6:10-1, et seq., for
conspiracy; and (5) intentional infliction of emotional distress (“IIED”). (Id. at 9.) As all the federal
claims against State Defendants were dismissed, the Court declined to exercise supplemental
jurisdiction over the state law claims. (Id. at 26.)
2. Hayek Defendants and Awari Defendants

Plaintiff’s First Amended Complaint also brought three federal counts and three state law
counts against Hayek Defendants and Awari Defendants. (Id. at 8-9.) The three federal counts
were: (1) violation of 42 U.S.C. § 1983 for the fabrication of evidence; (2) violation of § 1983 for
malicious prosecution; and (3) conspiracy to violate Plaintiff’s civil rights. (Id.)
The Court previously found that Plaintiff could not sustain any of his federal counts against
Hayek Defendants and Awari Defendants because Plaintiff “failed to plausibly allege [] Hayek
Defendants and Awari Defendants acted jointly with [] State Defendants in this matter.” (Id. at 23.)
As such, Hayek Defendants and Awari Defendants cannot be considered state actors acting under

the color of law. (Id. at 22-23.) In so finding, the Court noted that “Plaintiff’s [First] Amended
Complaint [was] replete with factual allegations that [] State Defendants ‘coerced [Hayek and
Awari] to give false, misleading and dishonest testimony.’” (See id. at 22.) Such allegations
effectively negated any claim that State Defendants and either Hayek Defendants or Awari
Defendants were working jointly towards a common goal. (See id.) Accordingly, all federal counts
were dismissed against Hayek Defendants and Awari Defendants without prejudice. (Id. at 23.)
Moreover, because all federal counts were dismissed against Hayek Defendants and Awari
Defendants, the Court again declined to exercise supplemental jurisdiction over the state law
counts brought against them.
Despite granting all Defendants’ Motions to Dismiss, the Court did so without prejudice to

give Plaintiff the opportunity to clarify his pleadings and address the concerns the Court raised in
its Opinion. (Order, ECF No. 57.) Accordingly, the Court granted Plaintiff leave to file a second
amended complaint, which he timely did on September 13, 2021. (ECF No. 71.)
C. Changes in Second Amended Complaint
In his Second Amended Complaint, Plaintiff makes several significant changes. (See
generally Second Am. Compl., ECF No. 71.) To begin, Plaintiff no longer brings any claims
against the Attorney General and his office, and Plaintiff now alleges only eight counts against
remaining Defendants, as opposed to the previous twelve counts alleged. (Id. ¶¶ 307-73.)
1. Amended Allegations Against State Defendants
As against State Defendants, Plaintiff brings only three federal counts: (1) violation of
§ 1983 for the fabrication of evidence; (2) violation of § 1983 for malicious prosecution;3 and
(3) conspiracy to violate Plaintiff’s civil rights brought under § 1983.4 (Id. ¶¶ 307-332.) Plaintiff,
however, brings the same five state law counts against State Defendants: (1) violation of N.J. Stat.

Ann. §§ 6:10-1, et seq., for fabrication of evidence; (2) violation of N.J. Stat. Ann. §§ 6:10-1, et
seq., for malicious prosecution; (3) violation of N.J. Stat. Ann. §§ 6:10-1, et seq., for deprivation
of Plaintiff’s substantive due process rights; (4) violation of N.J. Stat. Ann. §§ 6:10-1, et seq., for
conspiracy; and (5) IIED. (Id. ¶¶ 333-73.)
The Court previously found that State Defendants were absolutely immune from Plaintiff’s
claims under § 1983. (Op. at 18.) The basis for the Court’s finding was that Plaintiff’s allegations
against State Defendants alleged wrongdoing committed by State Defendants when they were
performing protected prosecutorial functions, i.e., presenting information to a grand jury. (Id. at
20-21.) Plaintiff now alleges, while retaining his previous pleadings about misleading evidence
being presented to a grand jury, that State Defendants presented fabricated evidence to Plaintiff in

an effort to gain his cooperation in investigating potential claims against Todd Koppel M.D.
(“Koppel”). (Second Am. Compl. ¶¶ 119, 164, 181, 251.)

3 Plaintiff alleges Count Two is only brought against Defendants Berg, Proetta, and Campanella,
but then each allegation contained in Count Two is brought against “State Defendants,” defined in
the Second Amended Complaint as including Keiffer. (Second Am. Compl. ¶¶ 12, 317-25.) As
such, the Court interprets Counts Two as being brought against all State Defendants, including
Keiffer, in their individual capacities.

4 Plaintiff is no longer pursuing the following claims: (1) violation of § 1983 for malicious abuse
of process against the State Defendants; (2) violation of § 1983 for inducement of false testimony;
or (3) violation of § 1983 for “stigma plus.” (See generally Am. Compl., ECF No. 5; Second Am.
Compl.)
More specifically, Plaintiff alleges that in Spring 2016, State Defendants were investigating
Koppel as a “leader of a multi-million-dollar insurance fraud scheme,” but “were having trouble
finding evidence to corroborate their suspicions.” (Id. ¶¶ 61, 62, 67.) Plaintiff further alleges that
State Defendants believed Plaintiff had critical information for the Koppel investigation and sought

to gain his cooperation by any means necessary, even if that meant fabricating evidence. (See
generally id. ¶¶ 69-123.) In particular, Plaintiff alleges that State Defendants provided him four
misleading or fabricated pieces of evidence that State Defendants threatened would be used against
Plaintiff if he did not cooperate with their investigation. (Id. ¶¶ 70, 83, 86, 90, 99, 108, 113, 146,
156, 157, 161, 164, 173, 181, 182, 193.)
The four pieces of evidence Plaintiff alleges are fabricated are: 1) the “Kickback
Spreadsheet”; 2) the “Hayek Audio Transcript”; (3) the “Summary Chart”; and (4) the “Insurance
Billing Chart.” (Id.) At least one of these alleged fabricated pieces of evidence, the Kickback
Spreadsheet, is alleged to have been provided to Plaintiff before either his 2017 indictment or 2018
superseding indictment. (Id. ¶¶ 83, 131, 196.) Two other documents, the Summary Chart and

Insurance Billing Chart, were provided to Plaintiff between the return of the first indictment and
superseding indictment. (Id. ¶¶ 155-65, 173-86.) It is not clear from the pleadings when State
Defendants presented Plaintiff with the Hayek Audio Transcript, but Plaintiff nevertheless alleges
it was provided to him in an effort to get him to cooperate in the Koppel investigation. (Id.
¶¶ 98-123.)
2. Amended Allegations Against Hayek and Awari Defendants
As against Hayek Defendants and Awari Defendants, Plaintiff brings only four state law
counts: (1) violation of N.J. Stat. Ann. §§ 6:10-1, et seq., for fabrication of evidence; (2) violation
of N.J. Stat. Ann. §§ 6:10-1, et seq., for malicious prosecution; (3) violation of N.J. Stat. Ann.
§§ 6:10-1, et seq., for conspiracy; and (4) IIED. (Id. ¶¶ 335-53, 361-73.)

The Court previously found that “Plaintiff’s [First] Amended Complaint [was] replete with
factual allegations that [] State Defendants ‘coerced [Hayek and Awari] to give false, misleading
and dishonest testimony,’” effectively negating any claim that State Defendants and either Hayek
Defendants or Awari defendants were working jointly towards a common goal. (See Op. at 22.)
Plaintiff’s Second Amended Complaint seeks to rectify this by adding allegations suggesting that
Hayek and Awari were willing participants in a scheme to bring fraudulent charges against
Plaintiff. (See Second Am. Compl. ¶¶ 33-39, 206-16, 328 (suggesting Awari fraudulently
implicated Plaintiff in a criminal scheme in order to avoid jail time, an action that was made in
concert with State Defendants).)
Specifically, as to Hayek, Plaintiff alleges that State Defendants offered him an opportunity

to avoid jail time and retain his chiropractic license if he provided additional names for State
Defendants’ investigation into kickbacks. (Id. ¶¶ 36, 38.) Plaintiff then alleges that Hayek, faced
“[w]ith an offer he could not refuse, [] joined [] State Defendants’ prosecution team and became
fully invested in their shared goal of manufacturing a case against as many doctors as possible, so
as to avoid prison time and preserve his license as a chiropractor.” (Id. ¶ 38.) One of the doctors
Hayek allegedly implicated in this scheme was Plaintiff. (Id. ¶¶ 40-45.)
Plaintiff alleges that State Defendants similarly offered Awari a deal wherein he could
avoid jail time and retain his chiropractic license if he cooperated in State Defendants’ kickback
investigation. (Id. ¶ 206.) Plaintiff alleges that State Defendants were unable to get the answers
they wanted from Awari, so State Defendants “instead chose to give [Awari] the answers that they
wanted.” (Id. ¶ 242.) In doing so, Plaintiff alleges, State Defendants asked Awari “leading,
coercive, and improperly suggestive questions” so that he would implicate Plaintiff as a guilty
party. (Id. ¶ 247.) Unlike his allegations against Hayek, Plaintiff does not allege that Awari was

fully invested in manufacturing a case against Plaintiff. (See generally id.) Plaintiff does, however,
state “Awari agreed to engage in and engaged in the fabrication of evidence in violation of”
Plaintiff’s rights.5 (Id. at 309.)
The Court now must consider whether these revised allegations against State Defendants,
Hayek Defendants, and Awari Defendants can survive Defendants’ Motions to Dismiss.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2)6 “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A district court conducts a three-part analysis when considering a motion to dismiss

pursuant to Rule 12(b)(6). Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court
must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’” Id. (alteration in original)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of
plaintiff’s well-pleaded factual allegations and “construe the complaint in the light most favorable
to the plaintiff.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).

5 Plaintiff continues to allege that Hayek and Awari were coerced by State Defendants to make
statements against Plaintiff or suborned to commit perjury. (Second Am. Compl. ¶¶ 1, 247, 328
(stating that State Defendants “suborned perjury” from Hayek and Awari while “acting in concert”
with them to do so) 330, 346, 358, 364, 368.)

6 All references to “Rule” or “Rules” hereinafter refer to the Federal Rules of Civil Procedure.
The court, however, may ignore legal conclusions or factually unsupported accusations that merely
state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
555). Finally, the court must determine whether “the facts alleged in the complaint are sufficient
to show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211 (quoting Iqbal,

556 U.S. at 679). A facially plausible claim “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 210 (quoting Iqbal, 556 U.S. at 678). On
a Rule 12(b)(6) motion, the “defendant bears the burden of showing that no claim has been
presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc.
v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
III. DISCUSSION
After consideration of the Parties’ arguments, the Court finds that absolute immunity
protects State Defendants from all federal counts brought against them. As such, Count One is
dismissed without prejudice and Counts Two and Three are dismissed with prejudice. As Counts
One through Three are the only federal claims left in this matter and they are all dismissed, the
Court declines supplemental jurisdiction over the five remaining state law claims brought against

State Defendants, Hayek Defendants, and Awari Defendants.
A. Federal Counts Against State Defendants
The Court finds that Plaintiff cannot state claims against State Defendants upon which
relief can be granted because State Defendants are protected by absolute immunity. The Third
Circuit recognizes two kinds of immunity under § 1983: qualified immunity and absolute
immunity. Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006). “Most public officials
are entitled only to qualified immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). In a
narrow set of circumstances, however, a public official may be shielded by absolute immunity. See
Fogle v. Sokol, 957 F.3d 148, 156, 159 (3d Cir. 2020). Specifically, “[a]bsolute immunity exists
for those officers who perform judicial or quasi-judicial functions.” Michaels v. New Jersey, 50 F.
Supp. 2d 353, 359 (D.N.J. 1999) (citing Imbler v. Pachtman, 424 U.S. 409, 420 (1976)). This group
squarely includes state prosecutors. See Fogle, 957 F.3d at 158-61. “Other officers, such as
investigators, [typically only] enjoy qualified immunity for their discretionary functions.” Id.

(citing Malley v. Briggs, 475 U.S. 335, 340 (1986)). That is unless the investigator is “performing
investigative work in connection with a criminal prosecution,” in which case, such investigator
deserves “the same absolute immunity as the prosecutor.” Fuchs v. Mercer County., 260 F. App’x
472, 475 (3d Cir. 2008).
Here, Keiffer is a state prosecutor to whom absolute immunity may attach. (Second Am.
Compl. ¶ 8.) Berg, Proetta, and Campanella are detectives to whom absolute immunity will only
attach if their functions are found to be the same as that of a prosecutor. (Id. ¶¶ 9-11; Cf. Fogle,
957 F.3d at 164 (citing Buckley, 509 U.S. at 268).) As at all times in Plaintiff’s Second Amended
Complaint he treats Keiffer, Berg, Proetta, and Campanella as acting collectively, the Court
considers Keiffer, Berg, Proetta, and Campanella’s actions collectively. (See generally Second Am.

Compl.) Accordingly, the Court focuses on absolute immunity as it applies to “prosecutors,”
lumping Berg, Proetta, and Campanella into the same analysis it conducts for Keiffer, due to State
Defendants’ alleged collective, critical role in investigating and prosecuting Plaintiff. See Fuchs,
260 F. App’x at 475 (“[I]nvestigators for a prosecutor performing investigative work in connection
with a criminal prosecution deserve the same absolute immunity as the prosecutor.”).
As the Court’s absolute immunity analysis and its assessment of the merit of Plaintiff’s
claims overlap, the Court addresses both contemporaneously through the lens of an absolute
immunity analysis.
The Third Circuit’s Opinion in Fogle instructs this Court’s absolute immunity analysis.
Fogle, 957 F.3d at 158-163 (providing a comprehensive overview of the legal development of
absolute immunity and detailing relevant case law for a district court’s absolute immunity
analysis). After consideration of Plaintiff’s allegations under Fogle, the Court concludes for the

reasons set forth below that absolute immunity attaches to protect State Defendants from all federal
counts brought against them.
Absolute immunity does not blanket “the actions of a prosecutor . . . merely because they
are performed by a prosecutor.” Id. at 159 (quoting Buckley, 509 U.S. at 273) (internal quotation
marks omitted). Instead, Fogle instructs that courts must “‘focus upon the functional nature of the
activities [performed by a prosecutor] rather than [the prosecutor’s] status’ to determine whether
absolute immunity is warranted.” Id. (quoting Burns v. Reed, 500 U.S. 478, 486 (1991) (second
alteration in original)). The functional test the Fogel court alludes to, “separates advocacy from
everything else, entitling a prosecutor to absolute immunity only for work ‘intimately associated
with the judicial phase of the criminal process.’” Id. at 159-60 (citing Imbler, 424 U.S. at 430).

The Third Circuit “has found, for instance, that prosecutors are immune from claims arising from
their conduct in beginning a prosecution” which might include soliciting false testimony from
witnesses in grand jury proceedings, presenting a state’s case at trial, or appearing before a judge
to present evidence. Id. at 160 (collecting cases). On the other hand, the Fogle court notes, “a
prosecutor’s ‘investigatory functions that do not relate to an advocate’s preparation for the
initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.’” Id.
(quoting Buckley, 509 U.S. at 273). As such, “when prosecutors function as investigators, rather
than advocates, they enjoy no right to absolute immunity,” even if a prosecutor may have probable
cause for an arrest. Id. (citations omitted).
The inquiry into what function a prosecutor is performing at the time of an alleged
constitutional violation is “a fact-specific analysis.” Id. In fact, the Third Circuit has consistently
held that such analysis does not “lend itself to bright-line rules.” See Odd v. Malone, 538 F.3d 202,
210 (3d Cir. 2008); see also Fogle, 957 F.3d at 160. The Fogle court emphasizes that such factual

inquiry can be onerous, and a prosecutor who seeks to invoke absolute immunity must demonstrate
“that absolute immunity should attach to each act [they] allegedly committed that gave rise to a
cause of action.” Fogle, 957 F.3d at 160 (quoting Light v. Haws, 472 F.3d 74, 80 (3d Cir. 2007).
With the above rules in mind, the Fogle court sets forth a two-step test district courts must
use in evaluating whether a prosecutor is entitled to absolute immunity: 1) the district court must
ascertain what conduct forms the basis of the plaintiff’s cause of action and 2) the district court
then must determine what function (prosecutorial, administrative, investigative, or something else
entirely) that act served. Id.
1. Count One- Fabrication of Evidence under § 19837
In accordance with Fogle, the Court takes note of Plaintiff’s first cause of action:
fabrication of evidence. A criminal defendant against whom wrongful criminal charges were

brought “may have a stand-alone fabricated evidence claim against state actors under the due
process clause of the Fourteenth Amendment.” Dalal, 2021 WL 1208901, at *8 (quoting Black v.
Montgomery County, 835 F.3d 358, 370 (3d Cir. 2016)). Under Third Circuit precedent, “[t]o state
a successful [§] 1983 claim for knowingly falsified evidence, a plaintiff must show a “reasonable

7 The Court notes that under New Jersey state law, courts apply a different absolute immunity
standard. Dalal v. Molinelli, No. 20-1434, 2021 WL 1207478, at *6 (D.N.J. Mar. 30, 2021) (“It is
long established that under New Jersey law . . . prosecutorial immunity is not absolute like its
federal counterpart.”). Insofar as this Court addresses only Plaintiff’s federal claims in this Opinion
and elects not to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims, the
Court does not reach the application of the state standard for absolute immunity.
likelihood that, absent that fabricated evidence, [he] would not have been criminally charged.”
Lentz v. Taylor, No. 19-1756, 2021 WL 5121247, at *4 (3d Cir. 2021) (quoting Black, 835 F.3d at
371); see also, Halsey v. Pfeiffer, 750 F.3d 273, 294-95 (3d Cir. 2014).
With this rule in mind, the Court recites Plaintiff’s allegations offered as the basis for his

fabrication of evidence claim. Plaintiff alleges in Spring 2016, State Defendants were investigating
Koppel as a “leader of a multi-million-dollar insurance fraud scheme,” but “were having trouble
finding evidence to corroborate their suspicions.” (Second Am. Compl. ¶¶ 61, 62, 67.) Plaintiff
further alleges that State Defendants believed Plaintiff had critical information for the Koppel
investigation and, seeking to gain his cooperation by any means necessary, provided him four
misleading or fabricated pieces of evidence that State Defendants threatened would be used against
Plaintiff unless he assisted with State Defendants’ investigation of Koppel. (Id. ¶¶ 70, 83, 86, 90,
99, 108, 113, 146, 156, 157, 161, 164, 173, 181, 182, 193.) At first glance, these allegations, which
were added to Plaintiff’s Second Amended Complaint, appear investigatory and non-prosecutorial,
suggesting absolute immunity may not attach to protect State Defendants.

As the Third Circuit has noted, “no sensible concept of ordered liberty is consistent with
law enforcement cooking up its own evidence.” Halsey, 750 F.3d at 292-93. The difficulty with
Plaintiff’s claim, however, is that in order for him to plead fabrication of evidence under § 1983,
he must allege that there is a reasonable likelihood that “but for” the fabrication of evidence, he
would not have been criminally charged. See Lentz, 2021 WL 5121247, at *4. As such, to sustain
a fabrication of evidence claim under § 1983, Plaintiff must go further than alleging the fabrication
of evidence in the context of an investigation into Koppel by alleging that the fabricated evidence
later led to criminal charges. See id. To accomplish this, Plaintiff must rely on allegations that the
fabricated evidence was presented to a grand jury, and absent that evidence’s presentation to the
grand jury, he would not have been charged. (See, e.g., Second Am. Compl. ¶ 253 (including a
quote from a state court judge finding that, in Plaintiff’s criminal case, “[h]ad the State not misled
the grand jur[y] . . . the [c]ourt is not convinced the grand jury would have indicted [Plaintiff],”
seemingly alleged by Plaintiff to bolster his fabrication of evidence claim); ¶ 314 (alleging Plaintiff

“would not have been charged with any criminal offenses had [] State Defendants not fabricated
evidence against him in the first instance” (emphasis added)).) In this way, the § 1983 fabrication
claim itself forecloses Plaintiff from bringing Count One against State Defendants. Kulwicki v.
Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (stating “[t]he decision to initiate a prosecution is at
the core of a prosecutor’s judicial role,” and consequently, is protected by absolute immunity).
With that said, the Court recognizes that the gravamen of Plaintiff’s amended allegations
concerns State Defendants’ conduct while they were investigating Koppel. (Second Am. Compl.
¶¶ 70, 83, 86, 90, 99, 108, 113, 146, 156, 157, 161, 164, 173, 181, 182, 193.) As such, it appears
Plaintiff’s Second Amended Complaint intends to allege that, before the initiation of any criminal
proceedings against Plaintiff or Koppel, State Defendants fabricated evidence against Plaintiff,

showed it to his defense counsel, and tried to get Plaintiff to admit to things he did not do while
wielding the threat of prosecution over him. (See id.) Nonetheless, even taking these acts as true,
for the reasons stated above, Plaintiff’s allegations of constitutional violations during a criminal
investigation cannot sustain a fabrication of evidence claim under § 1983. See Lentz, 2021 WL
5121247, at *4 (requiring a plaintiff show a reasonable likelihood that he “would not have been
criminally charged” but for the fabrication of evidence (emphasis added)). The Court, however,
will give Plaintiff an opportunity to find a separate constitutional basis to bring his § 1983 claim
against State Defendants for their alleged wrongdoing during Koppel’s criminal investigation, that
does not necessarily hinge on Plaintiff’s eventual prosecution.8 Accordingly, Count One is
dismissed without prejudice.
2. Count Two-Malicious Prosecution under § 1983
Absolute immunity more clearly attaches to protect State Defendants from Plaintiff’s

malicious prosecution claim under § 1983. To state a claim for malicious prosecution under § 1983
a plaintiff must show “(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 act maliciously or for a purpose other than bringing the plaintiff
to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizures
as a consequence of a legal proceeding.” Waselik v. Township of Sparta, No. 16-4969, 2017 WL
2213148, at *8 (D.N.J. May 18, 2017) (quoting Halsey, 750 F.3d at 296-97)).
As with Plaintiff’s fabrication of evidence claim under § 1983, Plaintiff’s malicious
prosecution claim requires the Court to evaluate the initiation of a prosecution by State Defendants.
As previously stated, Third Circuit precedent makes clear that “[t]he decision to initiate a

prosecution is at the core of a prosecutor’s judicial role.” Kulwicki, 969 F.2d at 1463. Moreover,

8 The Court notes that to articulate a claim for a constitutional violation, Plaintiff will need to
allege more than State Defendants fabricated evidence and presented it to him in an attempt to get
him to offer information. See Deforte v. Borough of Worthington, 364 F. Supp. 3d 458, 482 (W.D.
Pa. 2019), aff’d, 844 F. App’x 511 (3d Cir. 2021) (“Unlike in the administrative procedural due
process context, in which submitting one’s claims to a biased tribunal is itself injurious, the court
does not see how the existence of a false police report, sitting in a drawer in a police station, by
itself deprives a person of a right secured by the Constitution and laws.”); see also Buckley, 509
U.S. at 281 (Scalia, J., concurring) (“I am aware of [] no authority for the proposition that the mere
preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair
trial or otherwise harms him, violates the Constitution.”) To invoke a violation of procedural due
process, Plaintiff “must allege he was deprived of life, liberty, or property in some way as a result
of the fabricated evidence” that does not involve his eventual prosecution, or any loss of liberty
associated with his prosecution. See Deforte, 364 F. Supp. 3d at 482.
the Third Circuit “has explicitly stated that even groundless charges brought by a prosecutor are
protected [] in the interest of maintaining vigorous prosecution of crime.” Id. at 1464.
Here, Plaintiff’s allegations that State Defendants fabricated evidence during an
investigation of Koppel cannot sustain a malicious prosecution claim. This is because to

substantiate Plaintiff’s claim, Plaintiff must allege that State Defendants decided to initiate a
criminal proceeding, a decision that is clearly protected by absolute immunity. As such, like with
Plaintiff’s fabrication of evidence claim under § 1983, Third Circuit case law forecloses Plaintiff’s
malicious prosecution claim from proceeding against State Defendants because the claim
necessarily requires the Court to scrutinize actions State Defendants undertook while engaged in
prosecutorial functions. Cf. Jones v. Dalton, 867 F. Supp. 2d 572, 584 (D.N.J. 2012) (noting that
malicious prosecution claims also “require [a] [p]laintiff to prove that [a criminal] proceeding was
not initiated with probable cause” and that prima facie evidence of probable cause, established by
a grand jury indictment like that which occurred in this case, cannot be rebutted where absolute
immunity protects a prosecutor’s misrepresentations made to a grand jury).

3. Claim Three-Civil Rights Conspiracy under § 1983
Finally, Plaintiff failed to state a civil rights conspiracy claim upon which relief can be
granted, and even if he did properly state a claim, absolute immunity protects State Defendants
from Plaintiff’s conspiracy claim. “To prevail on a conspiracy claim under § 1983, a plaintiff must
prove that a person acting under color of state law ‘reached an understanding’ to deprive him of
his constitutional rights.” Jutrowski v. Township of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52 (1970)). “After a plaintiff establishes
that the object of the conspiracy was the deprivation of a federally protected right, the rule is clear
that the plaintiff must provide some factual basis to support the existence of the elements of a
conspiracy: agreement and concerted action.” Id. (citing Capogrosso v. Supreme Court of N.J., 588
F.3d 180, 184-85 (3d Cir. 2009) (internal quotation marks omitted)).
Plaintiff alleges that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were
violated by State Defendants. (Second Am. Compl. ¶ 327.) Unfortunately, the Court cannot

decipher from Plaintiff’s allegations which of these constitutionally protected rights State
Defendants allegedly agreed to violate. (See generally Second Am. Compl.) The closest Plaintiff
comes to alleging “agreement and concerted action” to violate Plaintiff’s civil rights involves
Hayek Defendants, who Count Three is not brought against. See, e.g., id. ¶ 38 (“Hayek joined []
State Defendants’ prosecution team[] and became fully invested in their shared goal of
manufacturing a case against as many doctors as possible.”); ¶ 326.) Moreover, the Second
Amended Complaint is replete with language explicitly stating that Hayek and Awari were
“coerced” or “suborned” into testifying against Plaintiff, further confusing the Court as to whom
conspired to do what. (Id. ¶¶ 1, 247, 328 (stating that State Defendants “suborned perjury” from
Hayek and Awari while “acting in concert” with them to do so) 330, 346, 358, 364, 368.)

Looking past allegations including Hayek Defendants and Awari Defendants, the Court
finds no allegations in the Second Amended Complaint that Keiffer, Berg, Proetta, and Campanella
collectively conspired against Plaintiff. (See generally Second Am. Compl.) Instead, the Second
Amended Complaint asserts that Berg, Proetta, and Campanella separately lied to Plaintiff or
fabricated evidence. (Id. ¶¶ 49, 108, 129.) As a result, the Court cannot conclude based on the
allegations provided that such alleged fabrications were the byproduct of concerted action, let
alone decipher which of Plaintiff’s constitutional rights was the subject of State Defendants’
conspiracy. This lack of clarity alone is sufficient for the Court to dismiss Plaintiff’s civil rights
conspiracy claim. See Jutrowski, 904 F.3d at 293-94 (“[A] plaintiff must provide some factual basis
to support the existence of the elements of a conspiracy: agreement and concerted action.”).
Even if the Court assumes, arguendo, that Plaintiff intends to argue his Fourteenth
Amendment rights were violated by State Defendants when they fabricated evidence to compel

him to cooperate in an investigation of Koppel, his claim must be dismissed because absolute
immunity protects State Defendants from such a claim. This is because Plaintiff, to allege his
Fourteenth Amendment rights were violated, must contend that fabricated evidence was used in
his criminal prosecution. (See Pl.’s Opp’n 41, ECF No. 94 (arguing that under Halsey9 any
reasonable investigator knows that “if they knowingly use[] fabricated evidence to bring about [a]
prosecution or to help secure [a] conviction” they have violated a criminal defendant’s
constitutional rights) (citing Halsey, 750 F.3d at 295-96).) As such, Plaintiff’s claim for civil rights
conspiracy requires the Court to analyze a prosecutorial function: use of fabricated evidence in
initiating a criminal proceeding. Cf. Fogle, 957 F.3d at 159 (stating that even “soliciting false
testimony from witnesses in grand jury proceedings and probable cause hearings” is protected by

absolute immunity). For these reasons, even assuming that Plaintiff sufficiently stated an
agreement by State Defendants under Rule 8 pleading standards, Count Three also must be
dismissed with prejudice because absolute immunity attaches to State Defendants.
B. Supplemental Jurisdiction
As all of Plaintiff’s federal claims have been dismissed and there is no diversity of
citizenship between Plaintiff and remaining Defendants in this case, the Court declines to exercise

9 Significantly, absolute prosecutorial immunity is not at issue in Halsey. 750 F.3d at 299. So,
when the Halsey court found that a civil plaintiff can sustain a Fourteenth Amendment claim
against a civil defendant alleged to have fabricated evidence for use in a criminal prosecution, it
did not do so where absolute immunity was applicable. Instead, the defendants in Halsey were
both detectives, neither of whom allegedly conspired with a prosecutor to bring criminal charges
against a criminal defendant, like is the case here. Id. at 278-79.
supplemental jurisdiction over Plaintiff’s remaining state law claims. (Second Am. Compl.
7- 16; 28 U.S.C. § 1367(c)(3) (stating a district court may decline to exercise supplemental
jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”).
The Court finds this measure especially appropriate where, as here, there are five remaining state
law Counts against all Defendants, several of which are significant state-constitutional law claims.
Accordingly, all remaining Counts against State Defendants, and all counts against Hayek
Defendants and Awari Defendants, are dismissed without prejudice.
IV. CONCLUSION
For the reasons stated above, State Defendants’ Motion to Dismiss Counts One, Two and
Three of Plaintiff's Second Amended Complaint is GRANTED. Count One of Plaintiff's Second
Amended Complaint is DISMISSED WITHOUT PREJUDICE and Counts Two and Three of
are DISMISSED WITH PREJUDICE. The remaining state law claims are DISMISSED
WITHOUT PREJUDICE.

Date: March 24, 2023

: —A,. a

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10275123. Public record. Not legal advice.