VAMVAS v. CUCCINIELLO

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICHAEL J. VAMVAS,

Plaintiff, Civil Action No. 22-571 (ZNQ) (RLS)

□ OPINION

JACK SAYEGH, et al.,

Defendants.

QURAISHIL, District Judge

THIS MATTER comes before the Court upon a Motion to Dismiss (“Motion”) filed by

Defendants Jack Sayegh, Michael Schniedt, Lesley Kirchgessner, and the Borough of South Toms

River (collectively, “Defendants”). (ECF No. 28.) Defendants filed a brief in support of their

Motion. (“Moving Br.”, ECF No. 28-3.) Plaintiff Michael J. Vamvas (“Plaintiff”) filed an

Opposition. (“Opp’n Br.”, ECF No. 30.) Defendants filed a Reply. (“Reply Br.”, ECF No. 31.)

The Court has carefully considered the parties’ submissions and decides the Motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1,

For the reasons set forth below, the Court will GRANT Defendants’ Motion to Dismiss.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 20, 2020, Plaintiff was formally charged with one count of theft of movable

property pursuant to Complaint-Warrant 1529-W-2020-000063 (“Charging Complaint- Warrant”).

(First Amended Complaint, “FAC” 4 10, ECF No. 25.) The Charging Complaint-Warrant is

attached as an exhibit to the FAC.’ (ECF No. 25-1.) Plaintiff alleges that his charge is a third-

degree offense and does not carry a presumption of incarceration. (Ud. 711.) An arrest warrant

was issued against Plaintiff and on February 20, 2021, Perth Amboy police arrested and detained

him. Cd. {| 13-14.) Other than the date of his arrest, Plaintiff does not allege any other facts

relating to the circumstances of his arrest or detention. (See generally FAC.)

Plaintiff now brings this action alleging that Defendants violated New Jersey Court Rule

3:3-1 (N.J. Court Rules”) when they improperly, and illegally, issued a Complaint-Warrant

against him instead of a Complaint-Summons. (/d. 9] 22-25.) Plaintiff also alleges that

Defendants have adopted a policy of violating N.J. Court Rule 3:3-1 by “issuing Complaint-

Warrants and arresting and incarcerating accused defendants rather than issue a Complaint-

Summons and mailing same to an accused defendant when appropriate.” (/d. J 26.)

On February 4, 2022, Plaintiff filed a Complaint asserting the following three counts:

Count I, violations of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983; Count II,

a New Jersey civil rights violation claim; and Count III, a federal and state conspiracy claim under

42 U.S.C. § 1983. (Compl. #9 28-41, ECF No. 1.) On March 30, 2023, the Court granted

Defendants’ Motion to Dismiss the Complaint. (ECF No. 24.) As directed by the Court, Plaintiff

filed a First Amended Complaint on April 28, 2023. (ECF No. 25.) In addition to two minimal

changes to Counts I and II, the substantive update to the FAC is the addition of factual allegations

relating to Defendants’ issuance of the Complaint-Warrant instead of a Complaint-Summons.

' A district court can “consider only the allegations in the complaint, exhibits attached to the complaint, matters of

public record, and documents that form the basis of a claim.” Lum vy. Bank of Am., 361 F.3d 217, 222 Gd Cir, 2004)

{citing In ve Burlington Coat Factory See, Litig., 1J4 F.3d 1410, 1426 Gd Cir, 19979).

(FAC ff 26-30.)? The FAC asserts the same three counts as the Complaint, (Ud 4] 31-43.)

Defendants filed the present Motion on June 15, 2023. (ECF No. 28.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) “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)

(abrogated on other grounds)).

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.” Jd, (alteration in original)

(quoting Ashcroft v, Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of

the plaintiff's well-pleaded factual allegations and “construe the complaint in the light most

favorable to the plaintiff.” Fowler vy. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation

omitted), The court, however, may ignore legal conclusions or factually unsupported accusations

that merely state the defendant unlawfully harmed me. Jgbal, 556 U.S. at 678 (citing Teombly,

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 lgbal, 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.” Jd. at 210 (quoting

igbal, 556 U.S. at 663). On a Rule 12(b)(6) motion, the “defendant bears the burden of showing

Court also notes that as of June 9, 2022, Defendant Dominick Cuccinielle is no longer a party to this action.

(ECF No. 17.)

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)).

UI. DISCUSSION?

A, DISMISSAL UNDER LOCAL CIVIL RULE 15.1(b)

Defendants first argue that the FAC should be dismissed because it is procedurally

defective under Local Civil Rule (“L. Civ. R.”) 15,1(b). (Moving Br. at 7-8.) L. Civ, R. 15,1(b)(2)

requires that “a party who files an amended pleading in response to an Order authorizing the filing

of that pleading to cure a defect in its pleading shall file,” among other things, “a form of the

amended pleading that shall indicate in what respect(s) it differs from the pleading that it amends,

by bracketing or striking through materials to be deleted and underlining materials to be added.”

L. Civ. R. 15.1(b), (6)(2).

Here, Plaintiff failed to file the FAC in accordance with L. Civ. R. 15.1(b). There are no

brackets, strikes, underlines, nor any other indication by Plaintiff as to how the FAC differs from

the Complaint. (ee generally FAC.) Plaintiff himself concedes that L. Civ. R. 15.1(b) applies to

the filing of the FAC and that the FAC does not comply with the 15.1(b\(2). (Opp’n Br. at 8.)

Failure to comply with a local rule could provide an independent ground to dismiss an amended

complaint. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 Gd Cir, 1991). However, Local

* A day after filing the present Motion, Defendants filed a letter to the Court attaching three exhibits, Exhibits A-C,

that were “erroneously unattached to [their] previous filing.” (ECF No. 29.) Defendants ask the Court to consider the

exhibits without converting this Motion into a motion for summary judgment. Plaintiff only opposes the consideration

of Exhibit B, a Police Incident Report. Generally, when presented with extrinsic documents not properly considered

on a motion to dismiss, the court may disregard them, deny the motion, or convert it into a motion for summary

judgment and provide a reasonable opportunity for all parties to present material pertinent to the motion. See Fed. R,

Civ. P. 12(d); Dix v, Total Petrochemicals USA, Inc., Civ. No. 10-3196, 2011 WL 2474215, at *2 (D.N.J. June 20,

2011). Defendants argue that the Police Incident Report “contains the key factual basis for the determination of

probable cause justifying the issuance of the Complaint-Warrant.” (Moving Br. at 9.) However, as set forth in detail

below, the allegations in the FAC make no reference to probable cause and Plaintiff's Opposition confirms his position

that his claim does not rely on the existence of probable cause, Accordingly, the Court finds that Exhibit B is not

relevant to the issue before the Court, and it will not consider the Police Incident Report or the arguments that rely on

it.

Civil Rule 15.1(b)(2) does not automatically trigger a dismissal of an amended complaint filed in

violation of the rule and the rule itself grants the Court power to “excuse” a violation based on its

discretion. L. Civ, R. 15.1(b)(2); see also Callaway v. Small, 21-12058, 2022 WL 970214, *3

(D.N.J. Mar. 31, 2022) (viewing a procedurally deficient first amended complaint as properly filed

but dismissing the second amended complaint for the failure to comply with those same local civil

rules), Though the Court finds that Plaintiff failed to adhere to the requirements of Local Rule

15.1(b)(2), it will overlook his procedural error to address the merits of his claims.

B. DISMISSAL UNDER RULE 12(b)(6)

Defendants also move to dismiss the FAC under Rule 12(b)(6) for failure to state a claim.

As a threshold issue, the parties construe the FAC in materially different ways.

Defendants construe the FAC to essentially allege two claims: (1) “a Adonell claim that

Defendants adopted and followed a policy and practice of issuing Complaint-Warrants for offenses

that require a Complaint-Summons in violation of N.J. Court Rule 3:3-1” and (2) “a false arrest

and imprisonment claim that the Defendants’ policy and practice of improper issuance of

Complaint-Warrants resulted in Plaintiff's unlawful arrest and imprisonment in violation of his

Fourth and Fourteenth Amendment rights under the Federal Constitution.” (Moving Br. at 1.)

Defendants underscore that “the gravamen of Plaintiffs ‘illegal arrest and incarceration’ claims

are rooted in the Fourth Amendment’s search and seizure clause.” (/d. at 17.) To state a claim for

false arrest under the Fourth Amendment, Plaintiff must establish that the arrest lacked probable

cause. (/d. at 18 (citing James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).) Though

the FAC does not mention “lack of probable cause,” and despite Plaintiff's attempts to cloak his

illegal arrest and incarceration claims “in factual allegations of Defendants’ improper issuance of

the Complaint-Warrant”, Defendants contend that the “sum and substance of these allegations are

subsumed within a lack of probable cause allegation, even if not so clearly stated in the FAC.” (/d.

at 17.) Defendants argue (1) that the FAC does not plead sufficient facts to establish that

Defendants lacked probable cause to arrest and detain Plaintiff and (2) that the “improper issuance

of a Compiaint-Warrant does not substitute for lack of probable cause as the prerequisite for

establishing a false arrest claim under the Fourth Amendment.” (/d. at 19, 21.)

Plaintiff construes his FAC differently. Plaintiff argues that the “claims are most certainly

not predicated and reliant upon a claim by [P]laintiff that the ‘arrest and detention lacked probable

cause,”” (Opp’n Br. at 12) (emphases omitted.) Instead, Plaintiff argues that “even if there is

probable cause to charge and initially detain, the [D]efendants were in this case limited to issuing

a [Complaint-Summons] without arrest once identification procedures were completed.” (id)

(emphases omitted.) Thus, the crux of Plaintiff's argument is that Defendants violated N.J. Court

Rule 3:3-1 when they charged Plaintiff on a Complaint-Warrant and that Defendants’ continued

detention of Plaintiff, instead of immediately releasing him on a Complaint-Summons, is

actionable under § 1983, (d. at 20.)

Section 1983 permits private civil actions for damages against any person who, acting

under the color of state law, deprives another of a right, privilege, or immunity secured by the

Constitution or federal law. See 42 U.S.C. § 1983. Section 1983 is not, itself, a source of

substantive rights; it is the method for vindicating violated federal rights, See Baker v. McCollan,

443 U.S. 137, 144 n.3 (1979). “To state a claim under § 1983, a plaintiff must allege the violation

of a right secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988).

Count I of the FAC is a § 1983 claim for violations of the Fourth and Fourteenth

Amendments. (FAC {9 31-36.) For the reasons set forth below, the Court finds that Plaintiff does

not allege a violation of a right secured by the Constitution; Count I of the FAC therefore fails to

state a claim.

The NJ. Court Rules distinguish between a Complaint-Warrant and a Complaint-

Summons, See generally N.J, Ct. R. 3:3-1. Under the applicable Rule, a Complaint-Summons is

presumed for all offenses except those serious offenses identified by the N.J. Court Rules. See

Ct. R. 3:3-1(c), ()}-(f); see also Cresci v. Aquino, Civ. No. 13-4695, 2017 WL 1356322, at

*6 (D.N.J. Apr. 10, 2017); Fields v. City af Salem Police Dep’t, Civ. No. 14-1849, 2015 WL

461887, at *3 (D.N.J. Feb. 4, 2015). The N.J. Court Rules also provide for when a Complaint-

Warrant may be issued over a Complaint-Summons, See N.J. Ct. R. 3:3-1(d). Plaintiff alleges

that none of the grounds for issuing a Compliant-Warrant over a Complaint-Summons were

present. (FAC § 24.) Therefore, Plaintiff alleges that Defendants improperly issued the Charging

Complaint- Warrant against Plaintiff, instead of a Complaint-Summons, “so that Plaintiff would be

subject to illegal arrest and incarceration.” (id. § 25.)

The Court accepts Plaintiffs allegations as true relating to the issuance of the Complaint-

Warrant. Having reviewed N.J. Court Rule 3:3-1(d) and the circumstances alleged, the Court

agrees that its issuance over a Complaint-Summons was inconsistent with that Rule. The Court,

however, rejects Plaintiff's argument that this can provide a basis for a § 1983 claim. Asa matter

of law, the New Jersey Supreme Court and courts in this District, have consistently found that

“even if a police officer erred in issuing a complaint-warrant, that ‘does not constitute a per se

violation of plaintiff's constitutional rights.” Cresci, 2017 WL 1356322 at *7 (citing Connor v.

Powell, 162 N.J. 397, 410 (2000) (citing Sanducci v. City of Hoboken, 315 N.J. Super. 475, 485

(App. Div, 1998) (quoting O’Brien v. Borough of Woodbury Heights, 679 F. Supp. 429, 436-37

(D.N.J. 1988)))); see also Fields, 2015 WL 461887, at *34 (“[T}he failure to issue a complaint-

summons tather than a complaint-warrant in and of itself does not violate a federally protected

right.”); Whichard v. Tomkins, Civ. No. 20-13099, 2021 WL 1784323, at *4 (D.N.J. May 5, 2021).

Rather, noncompliance with the N.J. Court Rule is a “factor that must be considered in determining

whether the police officers had probable cause or whether they reasonably believed that probable

cause existed,” Connor, 162 N.J. at 410-411.4 Given that Plaintiff explicitly roots his violation

of civil rights claim solely on Defendants’ failure to comply with N.J. Court Rule 3:3-1, and courts

have roundly rejected this theory, the Court concludes that Count I fails to state a claim under

§ 1983 and the Court will dismiss Count I.

Count II of the FAC, which alleges a claim for conspiracy to violate Plaintiff's civil rights

under § 1983, similarly fails. (FAC 41-43.) To state a claim for conspiracy to violate civil

tights under § 1983, a plaintiff must establish the following: 1) “two or more persons conspire to

deprive any person of constitutional rights”; (2) “one or more of the conspirators performs . . . any

overt act in furtherance of the conspiracy”; (3) “that overt act injures the plaintiff in his person or

property or deprives the plaintiff of any right or privilege of a citizen of the United States”; and

(4) that “the conspirators act ‘under the color of state law.’” Jutrowski v. Twp. of Riverdale, 904

F.3d 280, 294 n.15 (3d Cir. 2018) (quoting Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151,

162 (3d Cir. 2001)), Here, because the Court concluded that Plaintiff has not established a

deprivation of a constitutional right, the Court also concludes that Plaintiff cannot succeed on a

* To the extent that Plaintiff attempts to allege a false imprisonment claim, he barely argued, and barely alleged, any

facts to support a false imprisonment claim. Further, the Court notes that “[a] claim for false imprisonment derives

from a claim for false arrest; thus where police lack probable cause to make an arrest, the arrestee may also maintain

a Section 1983 claim for false imprisonment based on a detention pursuant to that arrest.” Gonzalez v. Bobal, Civ.

No, 13-1148, 2015 WL 1469776, at *6 (D.N.J. Mar. 30, 2015), Therefore, crucial to a claim for both false arrest and

false imprisonment is the existence, or non-existence, of probable cause.

civil rights conspiracy claim. See, e.g., Gimenez v, Borough of Elmwood Park, Civ. No. 17-7177,

2022 WL 1486194, at *11 (D.N.J, May 10, 2022). Thus, Plaintiff's federal conspiracy claim under

§ 1983, alleged in Count III, is dismissed.

C. STATE CLAIMS

Plaintiff also alleges violations of the New Jersey Civil Rights Act (hereinafter “NJCRA”)

and a state law claim for conspiracy to violate Plaintiff's civil rights, Counts IE and III of the FAC.

(FAC □ 37-43.)

The NJCRA was modeled after 42 U.S.C. § 1983, and creates a private cause of action for

violations of civil rights secured under the New Jersey Constitutions. Trafton v. City of Woodbury,

799 F. Supp. 2d 417, 443-444 (D.N.J. 2011) (citing Slinger v. New Jersey, Civ. No. 07-5561,

2008 WL 4126181, at *5-6 (D.N.J. Sept. 4, 2008)); Armstrong v. Sherman, No. 09-716, 2010 WL

2483911, at *5 (D.N.J. June 4, 2010), NJCRA provides, in pertinent part, a private cause of action

to [aJny person who has been deprived of any substantive due

process or equal protection rights, privileges or immunities secured

by the Constitution or laws of the United States, or any substantive

rights, privileges or immunities secured by the Constitution or laws

of this State, or whose exercise or enjoyment of those substantive

rights, privileges or immunities has been interfered with or

attempted to be interfered with, by threats, intimidation or coercion

by a person acting under color of law.

N.JS.A, 10:6-2(c). This District has repeatedly interpreted the NICRA analogously to § 1983,

See Chapman v. New Jersey, Civ. No. 08-4130, 2009 WL 2634888, at *3 (D.N.J, August 25, 2009)

(“Courts have repeatedly construed the NJCRA in terms nearly identical to its federal counterpart:

Section 1983.”); Slinger, 2008 WL 4126181, at *5 (noting NJCRA’s legislative history, this

district utilized existing § 1983 jurisprudence as guidance for interpreting the statute); Armstrong,

2010 WL 2483911, at *5 [T]he New Jersey Civil Rights Act is a kind of analog to [S]ection

1983.”); Hedges v. Musco, 204 F.3d 109, 121 n.12 Gd Cir. 2000) (concluding that New Jersey's

constitutional provision concerning unreasonable searches and seizures is interpreted analogously

to the Fourth Amendment) (citing Desilets v. Clearview Reg’l Bd. of Educ., 627 A.2d 667, 673

(N.J. Super. Ct. App. Div. 1993) (“We are not persuaded that the New Jersey Constitution provides

greater protection under the circumstances of this case than its federal counterpart. We note that

in [New Jersey v. T.L.O., 469 U.S. 325 (1985),] the New Jersey Supreme Court analyzed the search

and seizure issue under the Fourth Amendment to the United States Constitution, and did not

suggest that New Jersey's organic law imposed more stringent standards.”)); see also Norcross v.

Town of Hammonton, Civ. No. 04-2536, 2008 WL 9027248, at #4 (D.N.J. Feb. 5, 2008) (“The

New Jersey Supreme Court does not appear to have spoken on whether excessive force is a context

where state law provides greater protection than does federal law. This Court sees no reason to

conclude that in the context of a claim for excessive force during an arrest, the standard under the

New Jersey Constitution for evaluating those claims is different from that under the United States

Constitution.”), Accordingly, for the same reasons the Court dismisses the FAC’s federal claims,

it also dismisses its claims under state law,

D. DISMISSAL WITH PREJUDICE

As set forth above, the FAC will be dismissed because Plaintiff cannot state a claim for a

violation of his federal civil rights under § 1983 solely based on Defendants’ noncompliance with

N.J. Court Rule 3:3-1. Because Plaintiff fails to state a claim as a matter of law, the Court will

dismiss the FAC with prejudice.

10

IV. CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss (ECF No, 28) will be

GRANTED and Plaintiffs First Amended Complaint will be dismissed with prejudice. An

appropriate Order will follow,

ms eo / /

Date: January 31, 2024 aN 14

_” ZAHIDN. GURA ISHI

“UNITED STATES DISTRICT JUDGE

il