# RICHARDSON v. ORIOLO

> District Court, D. New Jersey · November 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10654721

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10654721

## How later opinions describe it (automated extraction)

- noting that “(slovereign immunity is routinely extended to ... state officials acting in their official capacities where it is show that the state is the real, substantial party in interest”
- noting that “(slovereign immunity is routinely extended to ... state officials acting in their official capacities where it is show that the state is the real, substantial party in interest”), affd 419 F.3d 267 (3d Cir. 2005)

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JEFFERY RICHARDSON and COLBY
RICHARDSON,
Civ. No. 16-135 (KM)(JBC)
Plaintiffs,
Vv. OPINION
STATE OF NEW JERSEY, JAMEL
SEMPER, and NICHOLAS ORIOLO,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiffs, Jeffery Richardson and Colby Richardson, filed a
complaint under 42 U.S.C. § 1983 alleging violations of their federal and state
constitutional rights and asserting that defendants committed intentional torts
against them. The complaint arises from plaintiffs’ arrest and prosecution in
connection with the December 15, 2013 shooting death of Naeem Williams.
Defendants are the State of New Jersey, the Essex County Assistant Prosecutor
Jamel Semper, and Detective Nicholas Oriolo.
When the complaint was filed, the state criminal case was still ongoing.
On May 31, 2016, defendants moved to dismiss the complaint. (DE 10). In the
alternative, defendants moved to stay this action pending the outcome of the
state criminal proceeding. On October 15, 2016, I granted the stay, granted the
motion to dismiss with respect to the injunctive relief, and administratively
terminated the motion to dismiss without prejudice to renewal after the
expiration of the stay. (DE 22}.
On July 9, 2018, plaintiffs moved for leave to file an amended complaint
and moved to vacate the stay. (DE 23). Plaintiffs attached to their motion a
copy of the judgment of acquittal in connection with the December 15, 2013
incident. (DE 23-1). On September 19, 2018, Judge Clark vacated the stay and

granted plaintiffs’ motion to file an amended complaint. (DE 25). On January
22, 2019, plaintiffs then filed an amended complaint. (DE 34).
Assistant Prosecutor Semper now moves to dismiss the amended
complaint because of the immunity afforded to prosecutors when they are
performing essential prosecutorial functions.! (DE 39). Plaintiffs oppose that
motion. (DE 44).
For the reasons explained herein, I will grant AP Semper’s motion to
dismiss.
I. Summary?
The allegations of the amended complaint are assumed to be true for
purposes of this motion only. I summarize them as follows.
The amended complaint alleges that on December 15, 2013 at
approximately 7:34 p.m., there was a shooting near the intersection of
Elizabeth Avenue and Clinton Avenue in Newark. (AC 7 15). There was a
surveillance video, which DSG Oriolo obtained two days later and reviewed. (Id.
4 17). The surveillance appears to show two individuals targeting two other
individuals who are standing near an Exxon gas station. (Id. | 18). A week
later, Oriolo obtained additional surveillance footage from December 5, 2013.
(Id. | 19). This time, the footage showed plaintiffs standing outside of a grocery
store, Luisa Grocery, located at 123 Elizabeth Avenue. (/d.) The video shows
plaintiffs standing at this location from 5 p.m. to 9 p.m. (/d.). Oriolo then
obtained two witness statements which did not match the surveillance video.

| The notice of motion refers to “Defendants” (plural) motion to dismiss. The only
substantive argument, however, 1s asserted on behalf of AP Semper.
2 Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:
“DE” = Docket entry number in this case.
“AC” = The amended complaint filed by plaintiffs (DE 34).
“DBr.” = Jamel Semper’s motion to dismiss (DE 39).
“PBr.” = Plaintiffs’ opposition to the motion to dismiss (DE 44).

(id. 21-23; 30-37). One witness, Kamika Erby, stated that she was standing
by a bus stop near the incident on Clinton Avenue at the time of the shooting;
the surveillance video, however, shows no one standing in that location at the
time of the shooting. (Id. ¢ 31). The second witness, Jennifer Gilbert (who was
also a victim of the shooting) stated that both plaintiffs shot her. (Id. | 33). The
surveillance video is inconsistent, in that it shows that each of the shooters
targeted only one individual. (Jd. J 18).
Nevertheless, Oriolo used these witnesses’ inaccurate statements in
preparing a criminal complaint and applying for arrest warrants. (Id. J 24). As
a result, on February 10, 2014, the plaintiffs were arrested. (Id. | 25).
On June 6, 2014, AP Semper and DSG Oriolo together used the allegedly
false statements of the two witnesses and Oriolo’s own allegedly false testimony
to obtain a grand jury indictment. (Id. 1] 46-49). The amended complaint
alleges that AP Semper used the two witnesses’ allegedly perjured statements
before the grand jury. (Id. | 46). Semper also purportedly withheld exculpatory
surveillance footage from the grand jury and allowed Oriolo to present his false
testimony to the grand jury. (/d. |] 47-48).
In October 2017, plaintiffs were tried, but the proceeding ended ina
declaration of mistrial. (Id. § 26). A second trial was held and on June 25,
2018, plaintiffs were acquitted. (Id. J] 27-28).
The amended complaint cites 42 U.S.C. § 1983, and asserts a variety of
claims under the U.S. Constitution, the New Jersey State Constitution, and
asserts various tort claims:
Count 1 - Violation of 4th Amendment (Oriolo)
Count 2 — Violation of 14th Amendment (Oriolo)
Count 3 ~ Violations of Sth and 14th Amendments (Semper)
Count 4 — Malicious Prosecution (all defendants)
Count 5 - Intentional Infliction of Emotional Distress (all defendants)
Count 6 - Compensatory damages
Count 7 - Defamation (all defendants)

Count 8 - Punitive/Exemplary damages
Count 9 ~ Declaratory Relief (return of personal property)
Because the movant, AP Semper, is named only in Counts 3, 4, 5, and 7, I
focus on those counts.?
The complaint seeks $18 million in damages and seeks an order
requiring the Essex County Prosecutor’s Office to return Jeffery Richardson’s
confiscated phone.
II. Legal Standard on Motion to Dismiss
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff's obligation to
provide the ‘grounds’ of his ‘entitlement to relief? requires 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). See also Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a
‘showing’ rather than a blanket assertion of an entitlement to relief (citation
omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a
plaintiff's right to relief above a speculative level, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570. See also West Run Student Hous.
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That
facial-plausibility standard is met “when the plaintiff pleads factual content
that allows 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)
(citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin
to a ‘probability requirement’. . . it asks for more than a sheer possibility.” Id.

3 Count 6 (Compensatory Damages) and Count 8 (Punitive Damages) are
remedies—not causes of action in themselves. See, e.g., Hassoun v. Cimmino, 126 F.
Supp. 2d 353, 372 (D.N.J. 2000). As such, they would be relevant only if some
underlying cause of action survived this motion to dismiss. Count 9, seeking a
declaration that plaintiff is entitled to return of a seized iPhone, seems to be directed
at the State or the County Prosecutor’s office; there is no allegation that defendant
Semper in particular possessed the phone.

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a
claim upon which relief can be granted. The defendant, as the moving party,
bears the burden of showing that no claim has been stated. Animal Science
Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).
For purposes of a motion to dismiss, the facts alleged in the complaint
are accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.
of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014). “Complaints filed pro se are
construed liberally, but even a pro se complaint must state a plausible claim
for relief.” Badger v. City of Phila. Office of Prop. Assessment, 563 F. App’x 152,
154 (3d Cir. 2014) (citation and internal quotation marks omitted).
In considering a motion to dismiss a pro se complaint, a court must bear
in mind that pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93, 127 5. Ct.
2197, 167 L, Ed. 2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92
S. Ct. 594, 30 L. Ed. 2d 652 (1972); see Alston v. Parker, 363 F.3d 229, 234 (3d
Cir. 2004) (“Courts are to construe complaints so as to do substantial justice. .
. keeping in mind that pro se complaints in particular should be construed
liberally.” (citations omitted)). This does not, however, absolve a pro se plaintiff
of the need to adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone
v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (“a pro se complaint ... must be
held to ‘less stringent standards than formal pleadings drafted by lawyers;’.. .
but we nonetheless review the pleading to ensure that it has ‘sufficient factual
matter; accepted as true; to state a claim to relief that is plausible on [its]
face.”).
III. Discussion: Federal Claims
a. Eleventh Amendment and “Persons” Under § 1983
Assistant Prosecutor Semper was employed by the Essex County
Prosecutor’s Office when the actions complained of by plaintiffs occurred. A
threshold issue is whether the claims arose from actions taken in Semper’s

official capacity such that he functioned as an agent of the state. To the extent
he acted as a State agent, plaintiffs cannot maintain a federal court action
against him in his official capacity.
The sovereign immunity conferred by the Eleventh Amendment “is a
jurisdictional bar which deprives federal courts of subject matter jurisdiction”
over states that have not consented to suit. Blanciak v. Allegheny Ludlum Corp.,
77 F.3d 690, 693 n. 2 (3d Cir. 1996) (citing Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 98-100 (1984)). This immunity extends to cases
against state officials in their official capacities where it is shown that the state
. is the “real party in interest.” Edelman v. Jordan, 415 U.S. 651, 662 (1974); see
also Antonelli v. New Jersey, 310 F.Supp.2d 700, 712 (D.N.J. 2004) (noting that
“(slovereign immunity is routinely extended to ... state officials acting in their
official capacities where it is show that the state is the real, substantial party in
interest”), affd 419 F.3d 267 (3d Cir. 2005)). In determining whether the state
is the real party interest, Courts consider “the source of the of the money that
would pay the judgment,” “the status of the entity under state law,” and “the
entity’s degree of autonomy.” Haybarger v. Lawrence County Adult Prob. &
Parole, 551 F.3d 193, 198 (3d Cir. 2008) (citing Fitchik v. N.J. Transit Rail
Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)).
The Third Circuit has held that an action against a county prosecutor in
his official capacity amounts to a suit against the state. See Hyatt v. Cnty. of
Passaic, 340 F. App’x 833, 836-37 (3d Cir. 2009}. County prosecutors serve as
“agents of the state,” and, if they are found to have engaged in misconduct, the
state “would be liable for any judgment against them.” Jd. (citing Wright v.
State, 169 N.J. 422, 778 A.2d 443, 461-62, 464 (2001)); see also Laskaris v.
Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981) (stating that a suit that seeks
damages against a state official for actions taken in her official capacity
functions as a suit against the state because “such retrospective relief
necessarily depletes the state treasury”). Accordingly, the Eleventh Amendment
bars federal courts from hearing such actions. Hyatt, 340 F. App’x at 837.

As to Section 1983 in particular, there is another issue that is parallel to,
and customarily analyzed together with, Eleventh Amendment immunity. |
refer to the issue of who or what is a suable “person” under section 1983.
Section 1983 imposes liability on “[e]very person who, acting under color of any
statute, ordinance, regulation, custom, or usage, of any State” subjects a
person to a deprivation of certain rights. 42 U.S.C. § 1983 (emphasis added).
“[NJeither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Hafer v. Melo, 502 U.S. 21, 26 (1991) (quoting Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989)). Also barred are Section 1983
suits for damages against “governmental entities that are considered ‘arms of
the state’ for Eleventh Amendment purposes,” which are “no different from a
suit against the State itself.” Id. at 70-71. State officials, sued in their official
capacities, are likewise not “persons” subject to a damages suit under section
1983. Will, 491 U.S. at 71 n.10; Kentucky v. Graham, 473 U.S. 159, 167 n.14
(1985).
As stated above, the State and its employees are not “persons” under §
1983. It follows that, if the Essex County Prosecutor’s Office and its employees
(sued in their official capacities) were acting as an arm of the State when
performing the acts of which plaintiffs complain, then they are not “persons”
amenable to suit. If acting as local, county officials, however, they may be
amenable to suit as “persons.” Estate of Lagano v. Bergen Cty. Prosecutor’s
Office, 769 F.3d 850, 855 (3d Cir. 2014).
As the preceding paragraph implies, New Jersey county prosecutors sit
uneasily astride the division between State and local entities. Sometimes they
act in one capacity, and sometimes in the other:
“[W]hen [New Jersey] country prosecutors engage in classic law
enforcement and investigative functions, they act as officers of the
State.” Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996). When
county prosecutors perform administrative functions “unrelated to
the duties involved in criminal prosecution,” however, they act as
county officials. jd. at 1505-06.

.

Lagano, 769 F.3d at 855; see also Coley v. Cnty. of Essex, 462 Fed.Appx. 157,
161 (3d Cir. 2011).
To simplify a bit, the prosecutor’s staffing and administrative functions
flow from the County. Thus, Coleman held that, when dealing with personnel
matters, a county prosecutor’s office acted in its administrative capacity as
part of county government. It therefore was a “person” which could be sued
under § 1983 for employment-related discrimination. 87 F.3d at 1500-01.
As to the core functions of enforcement of the criminal law, however, the
county prosecutor acts as a State official. The prosecutor is a gubernatorially-
appointed official of the State of New Jersey, pursuant to the State
Constitution, who acts under the oversight of the State Attorney General. Id.
Thus, where a county prosecutor and his detectives conducted an allegedly
illegal search, they acted as part of the State government, because their
conduct arose from their “investigation of criminal activity.” See Wright v. State,
778 A.2d 443, 453 (N.J. 2001) (citing Cashen v. Spann, 311 A.2d 192 (N.J.
Super. Ct. App. Div. 1973), aff'd, 334 A.2d 8 (N.J. 1975)). When performing
such law enforcement functions, prosecutors act as State officials, and
therefore are not “persons” amenable to suit under § 1983. See Michaels v.
State of N.J., 968 F. Supp. 230, 236 (D.N.J. 1997), affd, 150 F.3d 257 (3d Cir.
1998) (malicious prosecution action against County prosecutor and assistant
prosecutors).
Here, the misconduct alleged against Semper in his official capacity
arises from his prosecutorial functions. In essence, AP Semper is alleged to
have knowingly used false testimony of Gilbert, Erby, and Oriolo before the
grand jury. (AC 4 46). He is also alleged to have omitted exculpatory
surveillance evidence. (Id. { 47) In presenting evidence to the grand jury,
Semper was discharging essential prosecutorial functions; it follows that he
was acting as an arm of the State.
As such, AP Semper, in his official capacity, partakes of the State’s
Eleventh Amendment immunity and is not a “person” under § 1983. The

motion to dismiss the claims asserted in Counts 3, 4, 5 and 7 against Semper
in his official capacity is therefore granted.
b. Individual Immunity of Semper
Dismissal of official-capacity claims, however, is not the end of the story.
The amended complaint is seemingly directed at Semper, not only in his official
capacity, but also in his “individual capacity.” (AC J 10). An individual named
as a defendant in his personal capacity is amenable to suit as a “person.”
Lagano, 769 F.3d at 856. It does not matter that he happens to be a
government official, or that the acts for which he is sued happen to be official
acts. Hafer, 502 U.S. at 27. His amenability to suit flows solely from the
personal capacity in which he is sued.
A defendant sued in his personal capacity may assert individual
defenses, such as immunity:
Personal-capacity suits, on the other hand, seek to impose
individual liability upon a government officer for actions taken
under color of state law. Thus, “[o]n the merits, to establish
personal liability in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused the deprivation of a
federal right.” [quoting Kentucky v. Graham, 473 U.S. at 166}.
While the plaintiff in a personal-capacity suit need not establish a
connection to governmental “policy or custom,” officials sued in
their personal capacities, unlike those sued in their official
capacities, may assert personal immunity defenses such as
objectively reasonable reliance on existing law. Id., at 166-167.
Hafer, 502 U.S. at 25. And Assistant Prosecutor Semper asserts such defenses
here. Semper maintains that he is immune from liability as this action arises
as a result of his efforts to prosecute plaintiffs and present his case before the
grand jury. (DBr. at 3-5). Plaintiffs counter that, regardless of Semper’s
immunity, he presented a case to the grand jury that he knew was false or
misleading, and that therefore there is no legitimate reason to immunize him.
(PBr. at 3-4).
In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court applied
established common law principles of immunity to a Section 1983 action

against a prosecutor named Pachtman. Imbler, convicted of murder, was freed
on habeas corpus based on findings that the State prosecutor had engaged in
six culpable uses of misleading or false testimony, and had suppressed
favorable fingerprint evidence. Id. at 414-15. Imbler sued the prosecutor and
the police for damages under 42 U.S.C. § 1983, adding allegations that the
prosecutor knew a polygraph test had cleared him, and had introduced at trial
a police sketch that had been altered to more closely resemble Imbler.
Pachtman moved to dismiss the case under Rule 12(b)(6), claiming
prosecutorial immunity.
The Court reasoned that absolute immunity must apply. Damages
. actions against prosecutors, it held, should not “survive[ ] the pleadings,”
because a prosecutor must be unfettered in his or her duty to enforce the
criminal law. Id. at 424-26. “To be sure, this immunity does leave the
genuinely wronged defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty. But the alternative of
qualifying a prosecutor’s immunity would disserve the broader public interest.”
Id. at 427.
Imbler limited the scope of absolute immunity, however, to activities
“intimately associated with the judicial phase of the criminal process ... to
which the reasons for absolute immunity apply with full force.” Id. at 430. The
effect of that limitation was to “leave standing those cases ... which hold that a
prosecutor engaged in certain investigative activities enjoys, not the absolute
immunity associated with the judicial process, but only a good-faith defense
comparable to the policeman’s.” Id.
Absolute immunity, then, is confined to activities closely associated with
the judicial system. It therefore requires a “functional analysis” of the
particular task that the prosecutor is performing:
Absolute immunity attaches to ... activity taken while in court,
such as the presentation of evidence or legal argument, as well as
selected out-of-court behavior “intimately associated with the
judicial phases” of litigation. ... By contrast, a prosecutor acting in
an investigative or administrative capacity is protected only by

. 10

qualified immunity, Imbler, 424 U.S. at 430-31; Burns v. Reed, 500
U.S. 478 (1991). In addition, there may be instances where a
prosecutor’s behavior falls completely outside the prosecutorial
role. See Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 1989). In that
case, no absolute immunity is available.
Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992).
Of course, malfeasance is no proper part of a prosecutor’s role, but the
analysis under Imbler is different. Immunity depends on the nature of the
function, not the rightful or wrongful manner in which it is performed:
To give examples of prosecutorial activities protected by absolute,
as opposed to qualified, immunity, soliciting false testimony from
witnesses in grand jury proceedings and probable cause hearings
is absolutely protected. [citing Burns v. Reed, 500 U.S. 478 (1991)j.
Use of the false testimony in connection with the prosecution is
absolutely protected. See id. at 1939 (eliciting false or defamatory
statements from witnesses in a judicial proceeding was immunized
at common law). Even interviews generating evidence to be
presented to a grand jury are absolutely protected. [citing Rose v.
Bartle, 871 F.2d 331 (3d Cir. 1989)] (prosecutor’s solicitation of
testimony for use in grand jury proceedings is “encompassed
within ‘the preparation necessary to present a case’ and therefore
[is] immunized as involving the prosecutors’ advocacy functions.”)
(citation omitted).
Kulwicki, 969 F.2d at 1465. Also shielded by absolute immunity are claims
based on failure to turn over exculpatory evidence. Yarris v. Cnty. of Delaware,
465 F.3d 129, 137 (3d Cir. 2006). What those immunity—protected functions
have in common is that they involve the presentation of evidence to a court or
grand jury, or closely-associated activities preparatory to doing so.4

4 District Judge Arleo has usefully summarized the scope of activities protected
by absolute prosecutorial immunity thus:
Prosecutors also are absolutely immune from a civil suit for damages under §
1983 for: (1) instituting grand jury proceedings without proper investigation
and without a good faith belief that any wrongdoing occurred, Schrob, 948 F.2d
at 1411; Rose v. Bartle, supra; (2) initiating a prosecution without a good faith
belief that any wrongdoing has occurred, Kulwicii, 969 F.2d at 1463-64; (3)
soliciting false testimony from witnesses in grand jury proceedings, probable
cause hearings, and trials, Burns, 500 U.S. at 490; Kulwicki, 969 F.2d at 1467;
and (4) the knowing use of perjured testimony in a judicial proceeding, Imbler,
11

The law concerning prosecutorial immunity is well settled and
necessitates dismissal of plaintiffs’ claims against AP Semper. As noted above,
the amended complaint alleges misconduct in connection with presenting a
case to the grand jury. Specifically, Semper is alleged to have used perjured
statements before the grand jury and withheld exculpatory surveillance
evidence from the grand jury. (AC 46-49). Whether performed properly or
not, these are core prosecutorial functions that are shielded by absolute
immunity.
Assistant Prosecutor Semper is therefore absolutely immune. As to
defendant AP Semper, sued in his personal capacity, Counts 3, 4, 5 and 7 are
dismissed in their entirety.
IV. Discussion: State-law Claims
a. NJCRA
Claims under the New Jersey State Constitution are interwoven with the
federal constitutional claims, and they stand or fall together. The § 1983 claims
in the complaint make reference to the New Jersey State Constitution, and
therefore may be viewed in the alternative as claims under the New Jersey Civil
Rights Act (“NJCRA”). The NJCRA was modeled after § 1983, and thus courts
in New Jersey have generally looked at claims under the NJUCRA “through the
lens of § 1983.” Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443-44
(D.N.J. 2011); see also Chapman v. N.J., No. CIV. 08-4130(AET), 2009 WL

424 U.S. at 424-27; Schrob, 948 F.2d at 1417; Brawer v. Horowitz, 535 F.2d
830 (3d Cir. 1976). “[A]bsolute immunity applies when a prosecutor prepares to
initiate a judicial proceeding, or appears in court to present evidence in support
of a search warrant application.” Van de Kamp v. Goldstein, 555 U.S. 335, 343
(2009) (citations omitted) (further holding that a supervisory prosecutor is
absolutely immune for failing to adequately train and supervise district
attorneys on the duty not to withhold impeachment evidence and the failure to
create any system for accessing information pertaining to the benefits provided
to jailhouse informants). A falsely-charged defendant may be “remedied by
safeguards built into the judicial system,” such as dismissal of the charges.
Kulwicki, 969 F.2d at 1464.
Desposito v. New Jersey, 2015 WL 2131073, at *6 (D.N.J. May 5, 2015).
12

2634888, at *3 (D.N.J. Aug. 25, 2009)) (“Courts have repeatedly construed the
NJCRA in terms nearly identical to its federal counterpart: Section 1983.”).
The NJCRA, like § 1983, grants a cause of action against “a person acting
under color of law.” N.J. Stat. Ann. § 10:6-2 (emphasis added). Under NUCRA,
as under § 1983, a “person” does not include the State of New Jersey. Didiano
v, Balicki, 488 F. App’x 634, 638 (3d Cir. 2012) (citing definition of “person” in
N.J. Stat. Ann. § 1:1-2, which excludes the State except in certain property
disputes not relevant here).
Likewise, this Court has applied the absolute prosecutorial immunity
principles of Imbler to claims under the NUCRA. Here are a few recent
examples: Alexander v. Borough of Pine Hill, No. 117CV6418NLHKMW, 2018
WL 2215515, at *4 (D.N.J. May 15, 2018) (NJCRA “coterminous with” § 1983
for purposes of absolute prosecutorial immunity); Frost v. Cty. of Monmouth,
No. 3:17-CV-4395-BRM-DEA, 2018 WL 1469055, at *8 (D.N.J. Mar. 26, 2018)
(applying prosecutorial immunity analysis in parallel to claims under § 1983
and NJCRA); Simmons v. Roxbury Police Dep’t, No. 17-2526, 2017 WL 5188060,
at *11 (D.N.J. Nov. 9, 2017) (applying absolute prosecutorial immunity to a
plaintiff's NJCRA claim).
On these additional grounds, then, Counts 3, 4, 5 and 7, viewed as
NJCRA claims, will be dismissed. See B.D. v. Bd. of Educ. of the Greater Egg
Harbor Reg’ High Sch. Dist., 2015 WL 4508303, at *4 n.6 (D.N.J. July 24,
2015).5
b. Common law tort claims
Defendant Semper is also named in three state common law tort claims:
- Count 4 (Malicious Prosecution), Count 5 (Intentional Infliction of Emotional
Distress), and Count 7 (Defamation).

5 In the alternative, even if the complaint stated a claim under the NUCRA, the
court would decline to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c);
Section IV.B, immediately following.
13

For the reasons expressed above, the amended complaint contains no
viable federal cause of action against AP Semper. When a court has dismissed
all claims over which it had original federal-question jurisdiction, it has the
discretion to decline to exercise supplemental jurisdiction over any remaining
state-law claims. See 28 U.S.C. § 1367(c); see also Hedges v. Musco, 204 F.3d
109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995)). Where, as here, the federal claims are dismissed at
the early, Rule 12(b)(6) stage of litigation, declination of supplemental
jurisdiction is fairly routine. See United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966). This case is in its early stages, and discovery has been stayed. The
federal clairnms are insubstantial. The state tort claims asserted against
defendant Semper (Counts 4, 5, and 7) are therefore dismissed without
prejudice on jurisdictional grounds.
Vv. Conclusion
For the reasons set forth above, the motion of defendant Semper to
dismiss the complaint (DE 39) is GRANTED. The dismissal of the federal and
NJCRA claims is with prejudice, as amendment would be futile. The remaining
state law claims are dismissed without prejudice on jurisdictional grounds. The
remaining Counts are dismissed as against defendant Semper only, as they
either are not directed at him or they state only remedies which would depend
on the viability of some underlying cause of action. An appropriate order
follows.
Dated: November 18, 2019
Ke JY ( 19 4
Kevin McNulty Tage \
United States District Judge

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654721. Public record. Not legal advice.