LOUIS v. STATE OF NEW JERSEY DEPARTMENT OF TREASURY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES LOUIS,

Case No. 22cv4490 (EP) (JRA)

Plaintiff,

OPINION

V.

STATE OF NEW JERSEY, et al,

Defendants.

PADIN, District Judge.

Plaintiff James Louis was incarcerated for 25 years, 11 months, and 24 days after he was

convicted of murder and related offenses stemming from a fatal shooting in 1994. Ultimately,

those charges were dropped in 2020. Now, Plaintiff sues Defendants for their alleged involvement

in his unlawful arrest and prosecution. Two Defendants, Lieutenant Edward Johnson (“Lt.

Johnson”) and Assistant Prosecutor Ann Rubin (“Pros. Rubin”) (collectively “Prosecutor

Defendants”), move to dismiss Plaintiff's Complaint with respect to the claims brought against

them on immunity grounds. D.E. 10 (“Mot.”) at 2. The Court decides the motion without oral

argument. See Fed. R. Civ. P. 78(b); L.Civ.R.78(b). For the reasons below, Defendants’ motion

will be GRANTED.!

' Dismissals are with prejudice, as the Court finds that based on the applicable immunities and the

alleged facts, amendment could not remedy the Complaint’s deficiencies.

I. BACKGROUND2

On March 20, 1994, a group of individuals were standing outside a house in Elizabeth,

New Jersey, when two men stepped out of a black Acura Legend and began firing shots at the

group (“the Shootings”). D.E. 2, Ex. A (“Compl.”) ¶¶ 1, 4-5.3 The gunmen hit two individuals,

one of whom died. Id. ¶ 6. Of the seven witnesses to the Shootings, five knew Plaintiff well. Id.

¶¶ 7-8. None of those five ever placed Plaintiff at the crime scene. Id. ¶ 10. Throughout Plaintiff’s

arrest and prosecution, the only individuals to tell police that Plaintiff was involved in the

Shootings were Allison Johnson, a paid police informant (“Ms. Johnson”); Ms. Johnson’s 13-year-

old daughter Khadijah Johnson (collectively, “Johnsons”); and Kimberly Minus, an eyewitness to

the Shooting who did not know Plaintiff well. Id. ¶¶ 3, 34, 57-69.

Plaintiff, a Haitian-American citizen, alleges that his arrest was part of the “routine” and

“customary” violation of the constitutional rights of Haitian, African American, and Hispanic

citizens of Elizabeth. Id. at 3. Specifically, “based on nothing but [D]efendants’ false,

stereotypical, and racist assumption that a Haitian American male was involved in and had

knowledge of the Shooting,” Defendants fabricated evidence, filed false charges, and coerced

witnesses to provide false statements to prosecute Plaintiff. Id. Count IX, ¶ 4. Furthermore,

several Defendants, including Defendant Detective Thomas Koczur (“Det. Koczur”), were a part

of the “Family”4 or other “malfeasant-department authorities and command structures” within the

2 The facts in this section are taken from the well-pled allegations in the Complaint, which the

Court presumes to be true for purposes of resolving the instant motion to dismiss. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

3 Plaintiff’s Complaint restarts paragraph numbers with each Count. Accordingly, when citing to

material within a Count, the Court will cite to the Count and paragraph number(s) to minimize

confusion (e.g., Count 1, ⁋ 1).

4 The “Family” was a subgroup of police officers in the Elizabeth Police Department that was

formed in the absence of an “official leadership and command structure willing to accept

responsibility for the proper and constitutional operation” of the Elizabeth Police Department. Id.

Elizabeth Police Department (“EPD”) that enabled the long-term violation of minority citizens’

constitutional rights. See, e.g., id. ¶¶ 19, 95, 109, 114. Plaintiff’s Complaint focuses on the police

interviews with, and trial testimony of, the Johnsons and Minus.

A. The Johnsons

While investigating the Shootings, Det. Koczur of the EPD coerced Ms. Johnson into

providing a statement that she saw Plaintiff and another suspect in Elizabeth the night of the

Shootings. Id. ¶ 35. Specifically, Det. Koczur directed Ms. Johnson to say (and later testify at

trial) that Plaintiff and another suspect came to her apartment several hours after the Shootings,

and that Plaintiff stayed in her apartment for the following two weeks while “hiding out” from the

police. Id. at Count I, ¶¶ 18-20, 36. To obtain Ms. Johnson’s statement, Det. Koczur brought her

to the police station, and, given her status as a well-known and frequently used paid informant,

“snuck” her in. Id. ¶¶ 41-42. Then, Det. Koczur conducted “an improper and suggestive photo

identification procedure” with Ms. Johnson, in which Det. Koczur “pointed to the individuals he

wanted” Ms. Johnson to identify (including Plaintiff). Id. ¶¶ 43-44. In exchange for her informant

work, Ms. Johnson said she was paid cash and had some of her cases removed from the court’s

docket; she also believed some of her court fines were resolved. Id. at Count I, ¶ 13.

Based on Ms. Johnson’s identification, the police arrested Plaintiff on July 5, 1994. Id. ¶

49. That same day, Det. Koczur interviewed Plaintiff for approximately two hours, during which

Plaintiff made a recorded statement that Det. Koczur and other members of the EPD “knew or

should have known” was false due to its many errors. Id. at Count I, ¶¶ 50-54. At trial, the

Johnsons falsely testified to the above. Id. at Count I, ¶¶ 25-26, 28. Later, the Johnsons both

¶ 95 (emphasis in original). Plaintiff alleges the Family has had a long-lasting “corrupt and

subversive” influence on the Elizabeth Police Department. Id. ¶ 143.

admitted in affidavits that they lied when testifying that Plaintiff stayed with them following the

Shootings. Id. at Count I, ¶ 25. Ms. Johnson stated that the police “coaxed” her into incriminating

the suspects the police believed were responsible. Id. at Count I, ¶ 28. And Pros. Rubin (at some

unspecified time) visited Ms. Johnson and “coaxed her” into incriminating Plaintiff and others.5

Id. at Count I, ¶ 29.

Based on the Johnsons’ testimony, Pros. Rubin told the jury that Plaintiff was “hiding out”

from the police following the Shooting. Id. ¶ 20. Yet, it was never disclosed to Plaintiff or to the

jury at trial that Ms. Johnson was a paid informant, which Plaintiff alleges deprived him of the

opportunity to call into doubt the testimony of two of the Prosecution’s three key witnesses. Id. at

Count I, ¶¶ 16, 21-24. The Complaint never states that Pros. Rubin knew or “should have known”

that Ms. Johnson was a paid informant; however, Det. Koczur allegedly did know. Id. at Count I,

¶ 41. Regardless, Pros. Rubin “should have known” that Ms. Johnson’s status as a paid informant

would significantly undermine Ms. Johnson’s credibility as a witness. Id. ¶¶ 23-24. Also, Pros.

Rubin “should have known” that Ms. Johnson directed her daughter to lie on the stand. Id. ¶ 27.

5 The Complaint does not state whether Pros. Rubin became involved before or after Plaintiff’s

arrest. Prosecutor Defendants argue that their involvement was solely post-arrest because in Count

III of the Complaint, Plaintiff states that Prosecutor Defendants “furthered the prosecution” against

Plaintiff. Reply at 3 (emphasis in original) (quoting Compl. at Count III, ¶ 4). They contrast this

language with the language in the preceding paragraph: Defendants the City of Elizabeth and Det.

Koczur “‘initiated criminal proceedings’” against Plaintiff. Id. (emphasis in original) (quoting

Compl. at Count III, ¶ 3); see also Brady v. Office of the Cnty. Prosecutor, 2020 WL 5088634, at

*5-6 (D.N.J. Aug. 28, 2020) (similarly inferring that a prosecutor was only involved after the arrest

of the plaintiff because the complaint alleged that the prosecutor defendant was responsible for the

“continued” prosecution of the plaintiff).

B. Kimberly Minus

On January 26, 1995, Lt. Johnson,6 at the direction of Pros. Rubin, first interviewed Minus.

Id. at Count I, ¶ 41. Minus identified Plaintiff as a suspect in a photo lineup. Id. at Count I, ¶ 54.

Plaintiff alleges this identification was the product of a series of “suggestive and unreliable

interviews.” Id. ¶¶ 57-69, Count I, ¶¶ 30-59. Prosecutor Defendants “should have known”

Minus’s statement was unreliable because: (1) it was made ten months after the Shootings, (2)

Minus did not know the date of the Shootings during her first interview,7 (3) Lt. Johnson did not

ask Minus whether she recalled any “rudimentary information about the physical descriptors of

the defendants,” and (4) most importantly, Lt. Johnson violated police protocol by not reading the

required instructions to Minus. Id. ¶¶ 60-62, 80-82, 85-91, Count I, ¶¶ 51, 54-57. Moreover, Lt.

Johnson “visual queue[ed]” which photos Minus should select, something Pros. Rubin “should

have known” occurred. Id. at Count I, ¶¶ 51, 54, 59.

Minus’s recorded statement on January 26, 1995, was not signed. Id. ¶ 64. According to

Plaintiff, after Prosecutor Defendants met and discussed Minus’s statement with other Defendants,

Lt. Johnson brought Minus back to the station on January 30, 1995, to give a corrected and signed

statement. Id. ¶¶ 65-69. Additionally, Prosecutor Defendants “should have known” Minus’s

statement was inaccurate and unreliable because she could not identify Plaintiff or any other

suspect at trial, she conceded that she “merely guessed” during the photo lineup, and she testified

at trial that during the Shootings, “the only thing [she] really noticed basically was [that] these

guys came up with these guns.” Id. ¶¶ 88, 91-94, Count I, ¶¶ 53, 56-59.

6 The Complaint indicates that Lt. Johnson first became involved with the investigation in January

1995 when the Union County Prosecutor’s Office assigned him to conduct a “follow-up

investigation.” Id. at Count I, ¶ 30.

7 Lt. Johnson allegedly told Minus the date of the Shootings during the interview. Compl. ¶ 63.

C. Procedural History

Plaintiff filed a 12-count Complaint in state court. The Attorney General of New Jersey,

who represents multiple parties in this case,8 removed to federal court. D.E. 2. Against Prosecutor

Defendants,9 Plaintiff alleges various claims under 42 U.S.C. § 1983 for malicious prosecution

(Count III), abuse of process (Count IV),10 due process violations (Count V), racial discrimination

(Count IX)11, and conspiracy (Count VI).12 In addition, Plaintiff brings a state law claim under

the New Jersey Civil Rights Act (“NJCRA”) (Count XI). Finally, Plaintiff alleges common law

claims of malicious prosecution (Count III) and negligent and intentional infliction of emotional

distress (Count X). Plaintiff seeks general damages, compensatory damages, punitive damages,

costs and interest, attorney’s fees, and any other relief the Court deems just and equitable. Compl.

¶¶ A-F.

Prosecutor Defendants now move to dismiss Plaintiff’s claims against them pursuant to

immunity grounds. Both Plaintiff and Det. Koczur oppose. D.E. 23 (“Pl. Opp’n”), D.E. 24

(“Koczur Opp’n”). Prosecutor Defendants replied. D.E. 27 (“Reply”).

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court accepts all well-pled facts as

true, construes the complaint in the plaintiff’s favor, and determines “whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks omitted). To survive a Rule

8 The State of New Jersey, the Department of Treasury, Pros. Rubin, and Lt. Johnson.

9 The Court only discusses claims brought against Prosecutor Defendants.

10 Count IV is brought only against Pros. Rubin, not Lt. Johnson.

11 The Complaint has two Count IXs: negligent hiring & retention, and racial discrimination. See

Compl. at 78-83. Because the negligent hiring & retention count is not brought against Prosecutor

Defendants, all references to Count IX are to the racial discrimination count.

12 Count VI (conspiracy) is alleged under both 42 U.S.C. §§ 1983 and 1985.

12(b)(6) challenge, the plaintiff’s claims must be facially plausible, meaning that the well-pled

facts “allow[] the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations must be “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. DISCUSSION

Plaintiff sues the Prosecutor Defendants in their official and individual capacities.

Prosecutor Defendants argue that the official capacity claims should be dismissed because they are

not “persons” amenable to suit under § 1983 or the NJCRA. Mot. at 6-11. As for the individual

capacity claims, Prosecutor Defendants argue that they are entitled to (1) absolute immunity or,

alternatively, (2) qualified immunity, for all actions following13 Plaintiff’s arrest. Mot. at 11-20.

Lastly, Prosecutor Defendants argue that Plaintiff’s conspiracy count fails to state a claim against

Prosecutor Defendants and that Plaintiff’s state law claims fail as a matter of law. Mot. at 20-24.

A. Plaintiff’s § 1983 and NJCRA Claims Against Prosecutor Defendants In Their

Official Capacities Will Be Dismissed Because They are Not “Persons” Amenable to

Suit

42 U.S.C. § 1983 is a remedial statute designed to redress deprivations of constitutional

and federal rights. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). To state a claim for

relief pursuant to § 1983, a plaintiff must allege (1) a “deprivation of a constitutional right” and

(2) “that the constitutional deprivation was caused by a person acting under the color of state law.”

Phillips, 515 F.3d at 235 (emphasis added) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.

1996)).

13 Despite the Prosecutor Defendants’ use of the word “prior” in their briefing, it appears they

mean “following” Plaintiff’s arrest. See Reply at 18.

In suits against a defendant in their official capacity, the only immunities available “‘are

forms of sovereign immunity . . . , such as the Eleventh Amendment.’” Pierre v. N.J., Treasury

Dep’t, 2018 WL 5801549, at *7 (D.N.J. Nov. 5, 2018) (quoting Kentucky v. Graham, 473 U.S.

159, 167 (1985)). The Eleventh Amendment protects non-consenting states from suit brought in

federal court by private citizens seeking monetary damages or injunctive relief, except for

prospective injunctive relief.14 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100

(1984).

States cannot be held liable for violations of § 1983 because states are not “persons.” Will

v. Michigan Dept. of State Police, 491 U.S. 58, 66, (1989). This immunity is extended to state

agencies and instrumentalities acting as “arms of the state.” Id. at 70-71. Accordingly, “‘state

officials acting in their official capacities are not “persons” under [§] 1983.’” Brady v. Office of

the Cnty. Prosecutor, 2020 WL 5088634, at *4 (D.N.J. Aug. 28, 2020) (quoting Blanciak v.

Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996)). The analysis for official capacity

claims under the NJCRA, which provides a cause of action against “a person acting under color of

law” (N.J. Stat. Ann. § 10:6-2), is the same as under § 1983. See, e.g., Didiano v. Balicki, 488 F.

App’x 634, 638 (3d Cir. 2012).

“[W]hen [New Jersey] county prosecutors engage in classic law enforcement and

investigative functions, they act as officers of the State” and are entitled to Eleventh Amendment

immunity. Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996), abrogated on other grounds.

However, county prosecutors are subject to suit when they perform administrative functions

“unrelated to the duties involved in criminal prosecution . . . .” Pierre, 2018 WL 5801549, at *7.

14 The Complaint solely requests monetary damages. See generally Compl.

To be subject to suit, the administrative functions “must be entirely unrelated to the duties involved

in criminal prosecution.” Coleman, 87 F.3d at 1506.

Therefore, if Prosecutor Defendants were engaged in classic law enforcement and

investigative functions, they were acting in an official capacity and are not “persons” subject to

liability under § 1983 and the NJCRA.

1. Prosecutor Defendants are not persons subject to suit under § 1983 or the NJCRA.

Prosecutor Defendants argue they are not “persons” amenable to suit under either § 1983

or the NJCRA. Mot. at 7. Neither Plaintiff nor Det. Koczur address this argument. See generally

Pl. Opp’n and Koczur Opp’n; see also In re: Elk Cross Timbers Decking Mktg., 2015 WL 6467730,

at *6 (D.N.J. Oct. 26, 2015) (when a party fails to address an argument in briefing, “that issue [is]

. . . treated as unopposed”). The Court agrees with Prosecutor Defendants.

Here, Prosecutor Defendants are entitled to Eleventh Amendment immunity because they

were engaged in classic law enforcement and investigative functions and thus were acting as

officers of the state. See Coleman, 87 F.3d at 1506. Based on the Complaint, Prosecutor

Defendants’ alleged conduct pertains to their preparation for prosecuting Plaintiff. See supra n.3.

Lt. Johnson is alleged to have improperly conducted photo identifications during his “follow-up”

investigation several months after Plaintiff’s arrest, and Pros. Rubin is to have “effected the

wrongful and malicious prosecution” of Plaintiff. Compl. ¶ 14, Count 1 ¶¶ 30, 51. Because a

photo lineup of suspects and prosecuting a defendant are classic law enforcement and investigative

functions, the alleged conduct is not amenable to suit under § 1983. Cf. Pierre, 2018 WL 5801549,

at *7 (prosecutors were “clearly” engaged in classic law enforcement and investigative functions

when seeking an indictment and presenting witnesses at trial). Plaintiff does not allege any facts

that suggest Prosecutor Defendants were engaging in activates “entirely unrelated” to prosecution.

Accordingly, because Prosecutor Defendants were acting as agents of the State, they are

entitled to sovereign immunity for all claims brought against them in their official capacities. The

Court will GRANT Prosecutor Defendants’ motion and DISMISS with prejudice Counts III,

IV,15 V, VI, IX, and XI against Prosecutor Defendants in their official capacities.

B. Prosecutor Defendants are Entitled to Absolute Immunity for Plaintiff’s § 1983

Claims Against Prosecutor Defendants In Their Individual Capacities

1. Absolute Immunity Standards

The remaining § 1983 claims are those against the Prosecutor Defendants in their

individual capacities. Prosecutor Defendants argue they are entitled to absolute immunity, while

Plaintiff and Det. Koczur argue they are not.

Under the doctrine of absolute immunity, “a state prosecuting attorney who act[s] within

the scope of [their] duties in initiating and pursuing a criminal prosecution” is immune from suit.

Imbler v. Pachtman, 424 U.S. 409, 410 (1976). A prosecutor is absolutely immune from actions

“intimately associated with the judicial phase of the criminal process” while functioning as the

State’s advocate, such as initiating a prosecution, presenting the state’s case, and other acts. Id. at

430-31. A prosecutor’s employee, like a detective, is also entitled to absolute immunity “when

the employee’s function is closely allied to the judicial process.” Davis v. Grusemeyer, 996 F.2d

617, 631 (3d Cir. 1993); see also Moore v. Middlesex Cnty. Prosecutors Office, 503 Fed. App’x

108, 109 (3d Cir. 2012) (same).

Absolute immunity applies to a wide range of conduct, including improperly eliciting a

photo identification of a suspect in preparation for trial and failing to disclose that one of the

prosecution’s witnesses was a police informant. Pierre, 2018 WL 5801549, at *7-8; see also

15 Count IV of the Complaint was brought only against Pros. Rubin, not Lt. Johnson.

Burns, 500 U.S. at 490 (soliciting false testimony from witnesses and using it at trial); Imbler, 424

U.S. at 424-27 (knowingly using perjured testimony in a judicial proceeding); Kulwicki v. Dawson,

969 F.2d 1454, 1463-64 (3d Cir. 1992) (initiating a prosecution without a good faith belief any

wrongdoing occurred); Jerrytone v. Musto, 167 F. App’x 295, 300 (3d Cir. 2006) (evaluating

evidence collected by investigators and failing to conduct an adequate investigation before filing

charges); Desposito v. New Jersey, 2015 WL 2131073, at *7 (D.N.J. May 5, 2015) (tampering

with witnesses and using false and misleading evidence in a prosecution).

However, absolute immunity does not cover a prosecutor’s actions that are not closely

associated with the judicial system itself. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 276-78

(1993) (no absolute immunity when prosecutor fabricated evidence during a preliminary

investigation and held a press conference where they made false statements to the press about the

case); Yarris, 465 F.3d at 137 (no absolute immunity for deliberately destroying exculpatory

evidence). Absolute immunity also does not apply where the prosecutor’s actions serve a purely

investigative function. Newsome v. City of Newark, 2014 WL 4798783, at *2 (D.N.J. Sept. 25,

2014) (citations omitted).

To determine whether a prosecutorial activity is closely associated with the judicial system,

a court must evaluate the conduct’s “functional” considerations. Van de Kamp v. Goldstein, 555

U.S. 335, 343 (2009). This requires “the Court to look not just at who is being sued, but what the

complained of conduct entails, and how such conduct is tied to the judicial process.” Brady, 2020

WL 5088634, at *5. Analyzing functional considerations involves two steps. First, courts

determine “what conduct forms the basis for the plaintiff’s cause of action.” Fogle v. Sokol, 957

F.3d 148, 161 (3d Cir. 2020) (citations omitted). Second, they “determine what function[—

prosecutorial, administrative, investigative, or something else entirely—]that act served . . . .” Id.

This “focuses on the unique facts of each case and avoids bright-line rules[,]” such as “the timing

(pre-indictment versus post-indictment) or location (in court versus out of court) of the alleged

misconduct.” Newsome, 2014 WL 4798783, at *3 (citing Odd, 538 F.3d at 210).

Courts consider the following factors when determining whether the alleged conduct is

prosecutorial or investigative in nature: (1) the timing of the conduct; (2) whether the conduct

involves obtaining, reviewing, or evaluating evidence, which tend to be prosecutorial in nature;

and (3) whether the conduct involves decisions on how to proceed with a prosecution, as such

actions “serve a prosecutorial function.” Id. at *3.

The prosecutor bears the “heavy burden” of demonstrating entitlement to absolute

immunity and “must show that [they] w[ere] functioning as the state’s advocate when performing

the action(s) in question.” Odd, 538 F.3d at 207-08 (citations omitted). A defendant must show

that the conduct triggering absolute immunity “clearly appear[s] on the face of the complaint.”

Fogle, 957 F.3d at 161-62.

2. Prosecutor Defendants are entitled to absolute immunity.

Prosecutor Defendants argue they are both entitled to absolute immunity because (1) Pros.

Rubin’s alleged conduct relates to her role as an advocate and her evaluation of evidence presented

at trial, and (2) Lt. Johnson’s alleged conduct relates to his investigative work in connection with

an already underway criminal prosecution. Mot. at 14, 16. Plaintiff responds that absolute

immunity should not be granted because the Complaint is unclear as to whether the Prosecutor

Defendants’ conduct occurred during the investigation stage or after Plaintiff’s indictment. See

Pl. Opp’n at 2-3 (citing Yarris, 465 F.3d at 138-39, for the proposition that defendants are not

entitled to absolute immunity when the complaint is unclear as to when the complained-of conduct

occurred).

Prosecutor Defendants disagree, stating that the Complaint “unambiguous[ly]” indicates

that Prosecutor Defendants became involved after Plaintiff had been arrested and charged because

the Complaint alleges that Prosecutor Defendants “furthered the prosecution” against Plaintiff.

Reply at 2, 5 (emphasis in original) (internal quotation marks omitted).

The Court agrees with Prosecutor Defendants that they are entitled to absolute immunity.

As for Lt. Johnson, it is clear from the Complaint that he was solely involved after Plaintiff’s arrest

because he was “assigned” to conduct a “follow-up investigation” in January 1995, several months

after Plaintiff’s arrest on July 5, 1994. Compl. ¶ 49, Count I, ¶ 30. Lt. Johnson’s efforts were

exclusively tied to that assignment. Id. Because the nature of his role was to further the

prosecution of Plaintiff, even if carrying out that objective involved engaging in some

investigatory-like conduct, such as interviewing witnesses, Lt. Johnson is still entitled to absolute

immunity. See e.g., Gregg v. Pettit, 200p WL 57118, at *6 (W.D. Pa. Jan. 8, 2009) (an investigator

hired by a prosecutor’s office who allegedly manipulated multiple witnesses to “falsely implicate

plaintiff” still enjoyed derivative absolute immunity). Accordingly, the Court will GRANT the

motion and DISMISS the § 1983 claims brought against him in his individual capacity (Counts

III, V, VI and IX).

As to Pros. Rubin, the Complaint lacks allegations that identify when she became involved

in the investigation and prosecution. See generally Compl.16 However, while timing is a relevant

consideration, it is not dispositive. Newsome, 2014 WL 4798783, at *3; see also Fogle, 957 F.3d

at 163 (quoting B.S. v. Somerset County, 704 F.3d 250, 270 (3d Cir. 2013)) (explaining the “‘key

16 The Complaint references a ten-month period between March 20, 1994, the night of the shooting,

and January 26, 1995, when Minus later provided a statement. The Complaint states that “during

that time, Pros. Rubin reviewed, discussed, and planned her prosecution of the suspects . . . .” Id.

¶ 59 (emphasis added). It is also unclear when Pros. Rubin first met with Ms. Johnson. See Compl.

at Count I, ¶ 29, Count IV, ¶ 5, Count V, ¶ 4.

to the absolute immunity determination is not the timing of the investigation relative to a judicial

proceeding, but rather the underlying function that the investigation serves and the role the

[prosecutor] occupies in carrying it out’”). “Depending on the circumstances of each case, some

pre-indictment acts [] like obtaining, reviewing, and evaluating evidence in preparation for

prosecution [] . . . may be advocative and entitle a prosecutor to absolute immunity.” Odd, 538

F.3d at 211 n.3.

Because the Complaint alleges that Pros. Rubin “reviewed, discussed, and planned her

prosecution of the suspects[,]” Compl. ¶ 59 (emphasis added), it concedes that Pros. Rubin’s

involvement, regardless of timing, was prosecutorial in nature. Pros. Rubin’s alleged conduct—

“coaxing” testimony from a witness she “should have” deduced was a police informant—falls

within the bounds of immunized conduct because it was connected to her prosecution of plaintiff.

See, e.g., Kulwicki, 969 F.2d 1465 (“Evidence obtained at or after the filing is likely to be

connected with an existing prosecution, and is absolutely protected.”); Kalina v. Fletcher, 522 U.S.

118, 126 (1997) (citations omitted) (“Acts undertaken by a prosecutor in preparing for the initiation

of judicial proceedings or for trial, and which occur in the course of [their] role as an advocate for

the State, are entitled to the protections of absolute immunity.”).

Because Pros. Rubin was acting in a prosecutorial, rather than investigative role, she too is

entitled to absolute immunity from individual capacity claims. Accordingly, the court will

GRANT Pros. Rubin’s motion and DISMISS the § 1983 claims against her in her individual

capacity (Counts III, IV, V, VI and IX).

C. Prosecutor Defendants Are Also Entitled to Absolute Immunity in Their Individual

Capacities Under the NJCRA

Plaintiff brings three claims against Prosecutor Defendants under New Jersey statutory and

common law: malicious prosecution (Count III), negligent and intentional infliction of emotional

distress (Count X), and deprivation of rights under the NJCRA (Count XI).

Unlike its federal counterpart, “absolute immunity” under New Jersey law is not

“absolute,” and “‘a prosecutor [can] incur civil liability for his official conduct’” in some

circumstances. Newsome, 2014 WL 4798783, at *4 (quoting Cashen v. Spann, 66 N.J. 541, 334

(1975)). An immunity similar to absolute immunity was codified in the New Jersey Tort Claims

Act (“NJTCA”), N.J.S.A. 59:3-8, in 1972. Van Engelen v. O’Leary, 732 A.2d 540, 546 n.3 (N.J.

Super 1999). The NJTCA’s immunity provides that “[a] public employee is not liable for injury

caused by his instituting or prosecuting any judicial or administrative proceeding within the scope

of his employment.” N.J.S.A. 59:3-8. However, this immunity is limited and does not protect

illegal, actual malice, or willful misconduct, or conduct outside the scope of the employee’s

employment. See N.J.S.A. 59:3-14(a); see also Stolinksi v. PennyPacker, 2008 WL 5136945, at

*5-6 (D.N.J. Dec. 4, 2008) (denying absolute immunity where Plaintiff’s malicious prosecution

claims were premised on malice or misconduct).

Conduct is “‘within the scope of employment if it is of the kind that the [employee] is

employed to perform; it occurs substantially within time and space limits; and it is actuated at least

in part by a purpose to serve the [employer].’” Marley v. Borough of Palmyra, 193 N.J. Super.

271, 295 (Law Div. 1983) (quoting Di Cosala v. Kay, 91 N.J. 159, 169 (1982)). This is a question

of fact. Kelly v. Cnty of Monmouth, 380 N.J. Super. 552, 564 (App. Div. 2005). An employee

acts outside the scope of his employment “when he engages in tortious conduct that is not

reasonably connected with his employment.” Id. And, immunity does not apply when a

prosecutor acted for “personal predilection or gain” or “for personal reasons . . . .” Cashen, 66

N.J. at 550.

Prosecutor Defendants’ alleged conduct describes actions related to the prosecution of

Plaintiff: at the direction of the Union County Prosecutor’s Office, Lt. Johnson interviewed

witnesses following Plaintiff’s arrest, and Pros. Rubin prepared for Plaintiff’s trial. See, e.g.,

Compl. ¶¶ 57-94, Count I, ¶¶ 30-59. Because Prosecutor Defendants are employed to prosecute

such cases, their conduct in furtherance of the prosecution was within the scope of their

employment. Marley, 193 N.J. Super. at 295. However, Plaintiff alleges that Prosecutor

Defendants’ conduct went beyond the scope of their employment because they pursued Plaintiff’s

prosecution for career advancement and other career perks. Compl. at Count III, ¶ 2. But, Plaintiff

alleges no additional facts to support this allegation. See generally Compl. “Without more factual

allegations, the purported improper motives provided by [Plaintiff] . . . are speculative and

conclusory.” Saint-Jean v. Cnty. of Bergen, 509 F. Supp. 3d 87, 115 (D.N.J. 2020). Plaintiff’s

bare allegations are insufficient to show how the Plaintiff’s prosecution was related to their

respective careers or other related perks. See id. (collecting cases).

Therefore, without more, the Court will GRANT Prosecutor Defendants’ motion and

DISMISS Plaintiff’s state law claims against Prosecutor Defendants will be (Counts III, IX, and

X).

D. Prosecutor Defendants are Entitled to Qualified Immunity in Their Individual

Capacities Under § 1983 and the NJCRA17

Qualified immunity shields officials from civil liability “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine “provides ample

protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). “A plaintiff seeking relief under 42 U.S.C. § 1983 must

demonstrate ‘that the defendants, acting under color of law, violated the plaintiff’s federal

constitutional or statutory rights, and thereby caused the complained of injury.’” Black v.

Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016) (quoting Elmore v. Cleary, 399 F.3d 279,

281 (3d Cir. 2005)). Accordingly, § 1983 is not a source of substantive rights, but instead, is a

mechanism to vindicate rights afforded by the Constitution or a federal statute. Baker v. McCollan,

443 U.S. 137, 144 n.3 (1979).

“At the motion-to-dismiss stage, courts evaluate qualified immunity for a constitutional

claim by examining (i) whether the complaint contains plausible allegations of a constitutional

violation and (ii) whether the asserted constitutional right is clearly established.” Karkalas v.

Marks, 845 F. App’x 114, 118 (3d Cir. 2021) (citations omitted). To evaluate prong one, courts

should: (1) articulate the elements of the claim; (2) “scrutinize[] the complaint” to “disregard any

‘formulaic recitations of the elements’” and “’threadbare’” legal conclusions; and (3) if any

allegations remain, consider their plausibility while “construing them in the light most favorable

17 Alternatively, Prosecutor Defendants argue that they are entitled to qualified immunity. While

absolute immunity applies, the Court will also address qualified immunity. See Yarris, 465 F.3d

at 140 (for purposes of a potential appeal, district courts should address qualified immunity even

where absolute immunity is found); Pierre, 2018 WL 5801549, at *8 (applying this guidance).

to the plaintiff, drawing all reasonable inferences in the plaintiff’s favor.” Id. (cleaned up) (quoting

Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)). If at that point a “complaint

alleges enough facts to raise a reasonable expectation that discovery will reveal evidence of the

necessary elements of a claim, then it plausibly pleads a claim.” Id. (cleaned up). If not, the

plaintiff fails to state a claim for a constitutional violation, which consequently entitles the

defendant to qualified immunity. Id.

The second prong considers whether the right was clearly established at the time of the

official’s conduct. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (cleaned up). To

be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). If “the officer made a reasonable mistake about the legal constraints on his

actions,” then qualified immunity protects him from suit. Curley v. Klem, 499 F.3d 199, 207. The

mistake must be “objectively reasonable in light of the facts known to [the officer] at the time.”

Saint-Jean, 509 F. Supp. 3d at 116. Defendants bear the burden of proof. See Goldenbaum v.

DeLorenzo, 2010 WL 5139991, at *11 (D.N.J. Dec. 10, 2010).

The immunity standards governing the state law claims against Prosecutor Defendants are

identical to those under federal law. See Saint-Jean, 509 F. Supp. 3d at 115 (internal quotation

marks omitted) (“[T]he court applies the same standards of objective reasonableness [from] . . .

federal civil rights cases” to state cases.)

1. The Complaint does not plausibly allege any constitutional violations

a. Malicious Prosecution18

The elements of a Fourth Amendment malicious prosecution claim are: (1) the defendant

initiated a criminal proceeding, (2) without probable cause, (3) maliciously or for a purpose other

than bringing the plaintiff to justice, (4) causing the plaintiff to suffer a deprivation of liberty

consistent with the concept of seizure, and (5) the outcome of the criminal proceeding favored the

plaintiff. Id. “Plaintiff’s inability to show legal malice is fatal to [their] claim.” Harrison v. N.J.

State Police, 2023 WL 2327172, at *20 (D.N.J. Mar. 2, 2023). Legal malice is defined as

“knowingly acting without probable cause” and “[a] [p]laintiff must at least show that [the]

[d]efendant’s conduct was reckless and oppressive in disregard of Plaintiff’s rights.” Id. (internal

quotation marks omitted).

Plaintiff generally alleges that Prosecutor Defendants prosecuted him for “career

advancement and other career perks[,]” but fails to allege facts in support. Compl. at Count III, ¶

3; see generally Compl. While there are allegations that other Defendants, including Det. Koczur,

were a part of the “Family” or other groups within the EPD, see id. ¶¶ 95, 97-99, Prosecutor

Defendants are not alleged to have any improper affiliations. See generally id. Without any factual

allegations supporting actual malice, Plaintiff’s claim “is nothing more than a conclusory

reformulation of the malice element” and will be disregarded. Karkalas, 845 F. App’x at 119

(citations omitted).

18 Although Plaintiff does not explicitly mention the Fourth Amendment in the Complaint, Plaintiff

brings a Fourth Amendment malicious prosecution claim against Prosecutor Defendants for their

role in Plaintiff’s prosecution. Karkalas, 845 F. App’x at 119 (quoting Manuel v. City of Joliet,

580 U.S. 357, 367 (2017)) (“If the complaint is that a form of legal process resulted in pretrial

detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth

Amendment.”).

Because Plaintiff fails to allege an element of the malicious prosecution claim, Prosecutor

Defendants are entitled to qualified immunity and the Court will DISMISS this claim with

prejudice (Count III). See Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2001) (“If the plaintiff

fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the

[defendant] is entitled to immunity.”).

b. Abuse of Process

Plaintiff brings New Jersey common law and § 1983 abuse of process claims against Pros.

Rubin. A § 1983 claim for abuse of process arises when the prosecution is initiated legitimately

and thereafter is used for a purpose other than that intended by the law. Rose v. Bartle, 871 F.2d

331, 350 n.17 (3d Cir. 1989). The core of an abuse of process tort “is not the wrongfulness of the

prosecution, but some extortionate perversion of [a] lawfully initiated process to illegitimate ends.”

Heck v. Humphrey, 512 U.S. 477, 486 n.5 (1994). To establish an abuse of process claim, “there

must be some proof of a definite act or threat not authorized by the process, or aimed at an objective

not legitimate in the use of [the] process.” Ference v. Twp. of Hamilton, 538 F. Supp. 2d 785, 798

(D.N.J. 2008) (cleaned up).

Like the malicious prosecution count, Plaintiff does not allege any facts supporting that

Pros. Rubin sought to pervert the prosecution of Plaintiff toward illegitimate ends. Accordingly,

Pros. Rubin is entitled to qualified immunity, and the Court will GRANT her motion and

DISMISS this claim (Count IV).

c. Due Process Violation

Plaintiff also claims Prosecutor Defendants violated his rights to due process by coercing

fabricated evidence from witnesses and then using that evidence to convict Plaintiff. See Karkalas,

845 F. App’x at 120 (alleged due process violations for coercing fabricated evidence from

witnesses is a violation of a plaintiff’s Fifth Amendment Rights). An acquitted criminal defendant

must allege: (1) a government actor’s production or introduction of evidence or testimony; (2) at

any point before or during a criminal proceeding; (3) that the government actor knew to be; (4)

false; and (5) without that fabricated evidence, there is a reasonable likelihood that the defendant

would not have been criminally charged. Id. (collecting cases).

Plaintiff alleges that Pros. Rubin failed to disclose to Plaintiff or to the jury that Ms.

Johnson was a police informant, depriving the jury of important context about the State’s two “best

witnesses.” Compl. at Count I, ¶¶ 14-15, 21-24. Plaintiff implies such failure was a violation of

his due process rights. Pl. Opp’n at 5. Crucially, however, Plaintiff never alleges that Pros. Rubin

knew or even should have known Ms. Johnson was an informant, only that Pros. Rubin “knew or

should have known” that the jury might disregard Ms. Johnson’s testimony if informed she was a

paid informant. See generally Compl.; Count I, ¶ 15.

Overall, Plaintiff’s allegations are speculative and fail to establish the necessary element

that Pros. Rubin knew the information was false. See Pierre, 2018 WL 5801549, at *8 (emphasis

in original) (concluding that the allegations against Pros. Rubin in a related case must be dismissed

because the allegation that she “should have known” Ms. Johnson was a confidential informant

were insufficient).

Accordingly, Pros. Rubin is entitled to qualified immunity and the Court will GRANT her

motion and DISMISS this claim (Count V). See Connelly, 809 F.3d at 790.

d. Conspiracy

Plaintiff brings a conspiracy claim against Prosecutor Defendants under § 1983 and §

1985(3), the latter of which is a conspiracy to interfere with civil rights. See 42 U.S.C. § 1985(3).

To prevail on a conspiracy claim under § 1985(3), a plaintiff must establish: (1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person of the equal

protection of the laws, or of equal privileges and immunities under the laws; (3) an act in

furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived

of any right or privilege of a citizen of the United States. Farber v. City of Paterson, 440 F.3d

131, 134 (3d Cir. 2006). A plaintiff must also allege both “that the conspiracy was motivated by

discriminatory animus against an identifiable class and that the discrimination against the

identifiable class was invidious.” Id. at 135.

Under both §§ 1983 and 1985, Plaintiff’s allegations are insufficient because they fail to

allege that Prosecutor Defendants conspired to deprive him of his constitutional rights. Rather,

Plaintiff only alleges that Pros. Rubin and Lt. Johnson reviewed, discussed, and planned aspects

of his prosecution, as their jobs required. Compl. ¶ 59. Moreover, under § 1985, Plaintiff alleges

no facts indicating that Prosecutor Defendants were motivated by a discriminatory animus or that

such discrimination was invidious.

Because Plaintiff fails to plead the existence of a conspiracy or discriminatory animus with

respect to Prosecutor Defendants, they are entitled to qualified immunity and the Court will

GRANT their motion and DISMISS this claim (Count VI). See Watson v. Sec’y Pa. Dep’t of

Corr., 436 F. App’x 131, 137 (3d Cir. 2011) (dismissing both §§ 1983 and 1985 conspiracy claims

when a plaintiff failed to plead an actual agreement between the parties to violate his rights).

e. Racial Discrimination

Plaintiff alleges that “[u]nder color of law, [Prosecutor Defendants] violated 42 U.S.C. §

1983 and the Fourteenth Amendment . . . by depriving [Plaintiff] of his constitutional rights [and

acting] with racial animus.” Compl. at Count IX, ¶ 1. Yet, Plaintiff pleads no facts that allege that

Prosecutor Defendants acted with racial animus. See generally Compl. As such, Plaintiff has

failed to state a claim. Harrison, 2023 WL 2327172, at *5.

Because Plaintiff fails to allege an element of the racial discrimination claim, Prosecutor

Defendants are entitled to qualified immunity. See Bennett, 274 F.3d at 136 (“If the plaintiff fails

to make out a constitutional violation, the qualified immunity inquiry is at an end; the [defendant]

is entitled to immunity.”). The Court will GRANT their motion and DISMISS this claim (Count

IX).

2. Prosecutor Defendants are entitled to immunity for the NJCRA claims

As discussed above, the NJTCA provides immunity for claims brought against public

employees. Specifically, the NJTCA states that a “public employee is not liable for injury caused

by his instituting or prosecuting any judicial or administrative proceeding within the scope of his

employment.” N.J.S.A. 59:3-8. This immunity is limited: “Nothing in this act shall exonerate a

public employee from liability if it is established that his conduct was outside the scope of his

employment or constituted a crime, actual fraud, actual malice or willful misconduct.” N.J.S.A.

59:3-14(a). As the Court determined above under its absolute immunity analysis, Prosecutor

Defendants’ alleged conduct describes actions related to the prosecution of Plaintiff: at the

direction of the Union County Prosecutor’s Office, Lt. Johnson interviewed witnesses following

Plaintiff’s arrest, and Pros. Rubin prepared for Plaintiff’s trial. See e.g., Compl. ¶¶ 57-94, Count

I, ¶¶ 30-59. As such, the two were acting within the scope of their employment, and therefore,

Prosecutor Defendants are entitled to qualified immunity as well. See Pierre, 2018 WL 5801549,

at *8 (NJTCA immunity applies to prosecutor defendants when the alleged conduct occurred

within their roles as prosecutors).

Because Plaintiff cannot establish an NJCRA violation, Prosecutor Defendants are entitled

to qualified immunity and the Court will GRANT their motion and DISMISS this claim (Count

XI).

E. Plaintiff Fails to State Claims of Intentional and Negligent Infliction of Emotional

Distress

Plaintiff also brings New Jersey common law intentional and negligent infliction of

emotional distress (“IIED” and “NIED,” respectively), alleging Prosecutor Defendants “false[ly]

arrest[ed], maliciously prosecut[ed], and wrongfully imprison[ed]” Plaintiff, thereby intentionally

or negligently inflicting emotional distress. Compl. at Count X, ⁋ 1.

To state a prima facie case for IIED, a plaintiff must show: “(1) that the defendant intended

to cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the actions

proximately caused emotional distress; and (4) that plaintiff’s emotional distress was severe.”

Pierre, 2018 WL 5801549, at *9 (cleaned up). When a plaintiff fails to allege facts showing that

a prosecutor defendant acted with an ulterior motive, they cannot prevail on an IIED claim. See

id.; Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 956 (D.N.J. 1991) (A plaintiff cannot

establish intentional infliction of emotional distress by merely alleging that the defendants acted

“unjust, unfair and unkind.”). Plaintiff does not set forth any allegations in the Complaint that

show that Prosecutor Defendants intended to cause Plaintiff emotional distress. See generally

Compl.

To establish a prima facie claim for NIED, a plaintiff must show: “(1) the defendant had ‘a

duty of reasonable care’ to the plaintiff; (2) the defendant breached said duty; (3) the ‘plaintiff

suffered severe emotional distress’; and (4) the breach proximately caused the plaintiff’s injury.

Pierre, 2018 WL 5801549, at *6 (citing Dello Russo v. Nagel, 358 N.J. Super. 254, 269 (App. Div.

2003)). Plaintiff fails to allege any specific facts that he suffered from severe emotional distress.

See Izzo v. Twp. of Raritan, 2015 WL 6524343, at *6 (D.N.J. Oct. 28, 2015) (rejecting a plaintiff’s

NIED for the lack of allegations that showed the plaintiff suffered severe emotional distress).

Accordingly, because Plaintiff fails to sufficiently plead a claim for IIED and NIED, the

Court will GRANT Prosecutor Defendant’s motion and DISMISS this claim (Count X).

IV. CONCLUSION

For the foregoing reasons, Prosecutor Defendants’ motion to dismiss will be GRANTED.

The Court dismisses all claims against Prosecutor Defendants with prejudice.19 An appropriate

Order accompanies this Opinion.

Dated: June 16, 2023 __________________

Evelyn Padin, U.S.D.J.

19 Plaintiff’s remaining claims against Defendant Koczur will move forward.