STEPHENS v. GREWAL

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MARC A. STEPHENS, | HONORABLE KAREN M. WILLIAMS

Plaintiff, !

| Civil Action

Vv. No, 22-01989 (KMW-MIJS)

GURBIR S, GREWAL, ATTORNEY

GENERAL, STATE OF NEW JERSEY, et al., j OPINION

Defendants.

APPEARANCES:

MARC A. STEPHENS

271 ROSEMONT PL

ENGLEWOOD, NJ 07631

Appearing Pro Se

THOMAS FRANCIS SINDEL, JR., ESQ.

OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY

TORT LITIGATION AND JUDICIARY SECTION

25 MARKET STREET, P.O. BOX 116

TRENTON, NJ 08625

Counsel for Defendants Gurbir S. Grewal, Attorney General, Atlantic County Prosecutor □□

Office, and Detective Sergeant Michael Mattioli.

RACHEL B. KRISTOL, ESQ.

TIMOTHY P. O’BRIEN, ESQ.

STATE OF NEW JERSEY OFFICE OF ATTORNEY GENERAL

25 MARKET STREET, P.O, BOX 112

TRENTON, NJ 08625

Counsel for Defendant Stockton University and Robert Blaskiewicz, Jr.

TODD J, GELFAND, ESQ.

BARKER, GELFAND & JAMES

SUITE 12, 210 NEW ROAD

LINWOOD, NJ 08221

Counsel for Galloway Township

WILLIAMS, District Judge:

I, INTRODUCTION

This case arises out of Plaintiff Marc Stephen’s retention as a cyber security expert to

investigate a “cyber-attack” on the Burzynski Clinic, his identification of the alleged perpetrators

of the cyber-attack, and their responses to same, which culminated in the dismissal of State of New

Jersey v. Marc Stephens, (the “State case”), where Plaintiff was indicted on one count of fourth-

degree cyber-harassment. No, 18-09-01567-1, (N.J. Super. Ct. App. Div. Jan. 5, 2022); see also

(ECF No, | at Ex, 32). Plaintiff filed the instant Complaint alleging that Defendants! harmed him

by:

e violating his Due Process rights under 42 U.S.C. §1983, the Frfth and Fourteenth

Amendments under the United States Constitution, the New Jersey Civil Rights

Act, and Article [ of the New Jersey Constitution;

*® engaging in malicious prosecution, intentional infliction of emotional distress, and

defamation of character;

e filing frivolous claims and utilizing false evidence against him; and

e that the institutional Defendants engaged in negligent hiring and arguing for the

application of respondeat superior to redress the insufficient training and

supervision of the individual Defendants.

Defendants have all moved to dismiss Plaintiff's Complaint in its entirety. For the reasons

that foliow, University Defendants’ Motion to Dismiss (ECF No. 9) and Prosecutor-Defendants’

' Defendants in this matter are Stockton University and Robert Blaskiewicz, Jr., (University Defendants”), the

Attantic County Prosecutor’s Office, Attorney General Grubir 8S. Grewal, and Detective Michael Mattioli,

(“Prosecutor-Defendants”}, and Galloway Township.

Motion to Dismiss (ECF No, 16), will be GRANTED IN PART AND DENIED IN PART.

Defendant Galloway Township’s Motion to Dismiss (ECF No. 13) will be GRANTED.

Il. BACKGROUND

A. Factual Background

The Court will only recite the facts of the Complaint necessary to resolve the motions at

issue, According to the Complaint, on November 22, 2011, Plaintiff was hired by the Burzynski

Clinic as a consultant to investigate an “online attack” on the clinic. (ECF No. | at 412). Plaintiff

alleges that Defendant Blaskiewicz was part of a group called the “Skeptics Society” who allegedly

took part in the attack on the clinic and upon Plaintiff's discovery of their involvement, they sent

death threats to Plaintiff and various of his family members. Plaintiff describes making numerous

complaints to several local police departments, the FBI, and filing lawsuits against Defendant

Blaskiewicz and others allegedly in the Skeptics Society from 2011 through 2017. Ud. at 9]13-

36).

On February 10, 2017, Prosecutors filed a criminal complaint claiming Plaintiff engaged

in cyber harassment against Defendant Blaskiewicz, Ud. at 38-39). Plaintiff alleges that

Defendant Blaskiewicz fabricated social media accounts pretending to be Plaintiff to build this

case, and that Defendant Atlantic County Prosecutor’s Office and Defendant Detective Mattioli,

using the allegedly fake media accounts as evidence, provided false testimony to a grand jury. Ud.

at 9740-42). On September 18, 2018, Plaintiff was indicted by the Grand Jury on charges of cyber

harassment and threatening physical harm against Defendant Blaskiewicz. (/d. at 43). Plaintiff

was unaware of this case at the time and because he did not respond to the summons it became a

felony warrant which allegedly caused the denial of Plaintiff's passport in 2020. (/d. at (44-45).

Ultimately, on January 5, 2022, a Judge dismissed the indictment and the Prosecutor declined to

re-try the case. Ud. at [[48-49).

B. Procedural Posture

On April 4, 2022, Plaintiff filed the instant Complaint. (ECF No. 1). On June 21, 2022,

University Defendants filed their motion to dismiss. (ECF No. 9). On June 28, 2022, Defendant

Galloway Township filed its Motion to Dismiss, (ECF No. 13), to which Plaintiff did not file any

opposition.? On June 30, 2022, Plaintiff filed in opposition to University Defendants, (ECF No.

14) and on July 11, 2022, University Defendants replied. (ECF No. 15). On July 12, 2022,

Prosecutor-Defendants filed their Motion to Dismiss, (ECF No. 16), Plaintiff opposed same on

July 25, 2022, (ECF No. 17), and on August 8, 2022, Prosecutor-Defendants replied. (ECF No.

18). Thus, these motions are ripe for resolution.

I. LEGAL STANDARDS

A. Motion to Dismiss 12(b)(1)

Under Rule 12(b)(1), a defendant may seek dismissal of a complaint based on a court’s

lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “At issue in a Rule 12¢(b)(1) motion is

the court’s ‘very power to hear the case.’” Petruska v. Gannon Uniy., 462 F.3d 294, 302 (3d Cir.

2006) (quoting Mortensen v. First Fed. Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

“Federal courts are not courts of general jurisdiction; they have only the power that is authorized

by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender

Williamsport Area Sch, Dist., 475 U.S. 534, 541 (1986) (citing Marbury v. Madison, 5 U.S. 137,

1 Cranch (5 U.S.) 137, 173-180 (1803)).

2 Therefore, the motion is unopposed for this Opinion’s purposes.

When considering a Rule 12(b)(1) motion challenging subject matter jurisdiction, “[a]

district court has to first determine ... whether [the] motion presents a ‘facial’ attack or a ‘factual’

attack on the claim at issue, because that distinction determines how the pleading must be

reviewed.” Const, Party of Pennsylvania vy. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014) (citing

In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (Gd Cir. 2012)). As the Third Circuit

explained in Constitution Part of Pennsylvania y. Aichele:

A facial attack, as the adjective indicates, is an argument that

considers a claim on its face and asserts that it is insufficient to

invoke the subject matter jurisdiction of the court because, for

example, it does not present a question of federal law, or because

there is no indication of a diversity of citizenship among the parties,

or because some other jurisdictional defect is present. Such an attack

can occur before the moving party has filed an answer or otherwise

contested the factual allegations of the complaint.

id. at 358 (citing Mortensen, 549 F.2d at 891). On the other hand, a factual attack “is an argument

that there is no subject matter jurisdiction because the facts of the case . . . do not support the

asserted jurisdiction,” /d.

The Third Circuit has held that, although Eleventh Amendment immunity is not, strictly

speaking, a matter of subject-matter jurisdiction, it nonetheless analyzes the jurisdictional aspects

of sovereign immunity under the scope of a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction.” See Wilson v. NJ Dep’t of Corrs., No. 16-7915, 2017 U.S, Dist. LEXIS

170321 at *5, *8-9 (D.N.J. Oct. 13, 2017 (citing CNA v. United States, 535 F.3d 132, 140 (3d Cir.

2008)).

Therefore, in the context of the motions at bar raising Eleventh Amendment immunity as

a defense, the Court will review the pleading under a facial attack analysis. “‘[T]he court must

only consider the allegations of the complaint and documents referenced therein and attached

thereto, in the light most favorable to the plaintiff.” Jd. (quoting In re Schering Plough Corp.

Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)). “[A] facial attack calls

for a district court to apply the same standard of review it would use in considering a motion to

dismiss under Rule 12(b)(6), 7.¢., construing the alleged facts in favor of the nonmoving party.”

Id. (citation omitted).

B. Motion to Dismiss (12)(b)(6)

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is required to

-accept as true all factual allegations in the complaint and draw all reasonable inferences from those

allegations in the light most favorable to the plaintiff, see Phillips v. Cnty. of Allegheny, 515 F.3d

224, 228 (Gd Cir, 2008), but need not accept as true legal conclusions couched as factual

allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). A complaint need not contain “detailed

factual allegations” to survive a motion to dismiss, but must contain “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. igbal, 556 U.S. 662, 678 (2009). A

complaint “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do,’” and a complaint will not “suffice” if it provides only “‘naked assertion[s]’

devoid of ‘further factual enhancement.’” /d. (quoting Bell Atlantic v. Twombly, 550 U.S. 544,

555, 557 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Jd, (quoting

Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” fd. (quoting Twombly, 550 U.S. at 556). A complaint that provides facts

“merely consistent with” the defendant’s liability “stops short of the line between possibility and

plausibility” and will not survive review under Rule 12(b)(6). /d. (quoting Zwombly, 555 U.S. at

557),

Generally, a district court may consider; allegations in the complaint, matters of public

record, orders, and exhibits attached to the complaint. Francis E. Parker Mem'l Home, Ine. y.

Georgia-Pac. LLC, 945 F, Supp. 2d 543, 551 (D.N.J. 2013) (citing Chester County Intermediate

Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.1990)). Thus, a court cannot consider

matters that are extraneous to the pleadings. Jn re Burlington Coat Factory Sec. Litig., 114 F.3d

1410, 1426 (3d Cir, 1997). However, courts may consider documents integral to or explicitly relied

upon in the complaint without converting the motion to dismiss to one for summary judgment.

Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing J re Burlington Coat Factory Sec.

Litig., 114 F.3d at 1426). In this regard, it is critical to consider “whether the claims in the

complaint are ‘based’ on an extrinsic document and not merely whether the extrinsic document

was explicitly cited.” Schmidt v. Skolas, 770 F.3d 241, 249 Gd Cir. 2014),

C. Fed. R. Civ. P. 8{a)

Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a complaint seeking to raise a

claim for relief must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. Rule Civ. P. 8(a)(2). Each allegation in a complaint must therefore be

“concise and direct.” Fed. R. Civ. P. 8(e)(1). A district Court may dismiss a complaint sua sponte

for failure to comply with Rule 8. Ruther v. State Kentucky Officers, 556 F. App’x 91, 92 (3d Cir,

2014). A complaint may therefore be dismissed pursuant to Rule 8 where the “‘complaint is so

confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well

disguised.’” Id. (quoting Simmons vy. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)), Dismissal is proper,

therefore, where a complaint is illegible, incomprehensible, indecipherable, or largely

unintelligible. See id.; Elliott v. Point Breeze Station Mail Dep’t, 711 Fed. Appx. 71, 72-73 Gd

Cir. 2017); Scibelli v. Lebanon Cnty., 219 F. App’x 221, 222 (3d Cir. 2007); Stephanatos vy. Cohen,

236 F, App’x 785, 787 (2007).

However, in dismissing an unintelligible complaint pursuant to Rule 8, a reviewing court

should provide the party whose pleading is dismissed an opportunity to amend. Therefore, the

appropriate action when faced with an unintelligible complaint is to dismiss the complaint without

prejudice to the filing ofan amended complaint. Ruther, 556 F. App’x at 92; Moss v. United States,

329 F. App’x 335, 336 Gd Cir. 2009); Simmons, 49 F.3d at 86-87,

IV. DISCUSSION

At the outset, the Court acknowledges that when determining the sufficiency of a pro se

complaint, the Court must be mindful of accepting its factual allegations as true, See James v. City

of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012), A pro se plaintiffs complaint must be

construed liberally, but this does not absolve a pro se plaintiff from complying with the Federal

Rules of Civil Procedure. 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 plausibie on [its] face.’”).

A, Eleventh Amendment Immunity

Because “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of

subject matter jurisdiction,” the Court will first address the Eleventh Amendment defense asserted

by University Defendants and Prosecutor-Defendants. Blanciak v. Allegheny Ludlum Corp., 77

F.3d 690, 694 (Gd Cir. 1996).

Generally, the Eleventh Amendment can extend to State agencies acting as “arms of the

state,’”? and may further extend to individual State officials when they are sued for damages. Brady

v. Office of the Cty. Prosecutor, No. 19-16348, 2020 WL 5088634 at *3 (D.N.J. Aug. 28, 2020),

The Third Circuit has a three-factor test (collectively called the “Fitchik factors”) to determine

whether an entity is an arm of the State for Eleventh Amendment purposes, which requires a court

to review: 1) the source of the entity’s funding (“the funding factor”), 2) the State law status of the

entity (“the status factor”), and 3) the level of autonomy the entity has from the State (“the

autonomy factor’), See Bowers vy. NCAA, 475 F.3d 524, 545-46 (3d Cir. 2007).

The funding factor “hinges” on whether the payment of the judgment would come from

the State. Maliandi v. Montclair State Univ., 845 F.3d 77, 86 (3d Cir. 2016). To this end, three

subfactor's to consider are whether the State has a legal obligation to pay a money judgment if it is

entered against the entity, if the entity has alternative sources of funding, or if there are any specific

statutory provisions that immunize the State (and, subsequently, the entity) from liability for

money judgments. fd.

The status factor focuses on what status the entity has under State law. Jd. at 91, The Court

is to consider how State law treats the entity generally: if there are any explicit statutory indications

relating to the entity, whether case law from the State courts, especially a State’s Supreme Court,

has determined the entity’s status previously, or if the State (and therefore its delegates) has waived

its own immunity to certain laws, /d, The status factor also considers the incorporation of the entity,

as well as its ability to sue and be sued, whether it is immune from State taxes, if it has a sovereign

power such as eminent domain, if the entity is subject to a State’s administrative procedure and

3 “Arms of the State” are defined as entities that, by their very nature, are so intertwined with the State that any suit

them renders the State the real, substantial party in interest. See Edelman v. Jordan, 415 U.S. 651, 663

civil service laws, whether an entity has the power to enter into contracts, and whether an entity

retains title to its land. 7d, at 93-96.

The autonomy factor focuses on what degree of autonomy the entity has from the State, □□□

at 96. For this factor, the Court considers an entity’s governing structure, as well as the oversight

and control that the State exerts over the entity via its Governor and Legislature. dd.

An entity does not need to meet all three factors for immunity to apply; the Court is

responsible to balance the factors, which have equal weight, after a highly fact intensive review.

See Bowers, 475 F.3d at 546; see also Maliandi, 845 F.3d at 84. Therefore, each case requires

individualized determinations. Jd.

Here, both Defendant Stockton University and Prosecutor-Defendants assert that they are

protected by Eleventh Amendment immunity against Plaintiffs claims. Regarding Defendant

Stockton University, it asserts that it should be immune from suit because it satisfies two out of

the three Fitchik factors—te status factor and autonomy factor—and provides a litany of facts to

demonstrate that it is generally considered a State entity under State law and lacks autonomy from

the State government. (ECF No. 9 at 4-6). Defendant Stockton University further argues that it is

“materially indistinguishable” from Montclair University and Ramapo College, which were found

to be “arms of the state” by other courts in this District, and on this basis it should also enjoy

Eleventh Amendment immunity. (/d. at 4, 6).

However, the Court cannot rely on this comparison because “each case must be considered

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

individual factor in the unique factual circumstances at issue.” Rowan Univ. v. Factory Mut. Ins.

Co,, No, 21- 08992, 2021 WL 4947374 at *4 (D.N.J. Oct. 25, 2021) (quoting Karns v. Shanahan,

879 F.3d 504, 513 Gd Cir. 2018)). Moreover, Defendant Stockton University has not provided a

an

single fact related to the funding factor. Without any set of facts to evaluate the funding factor, the

Court is unable to fully and properly assess all of the Mitchik factors as required.

On this point, the Prosecutor-Defendants’ arguments for Eleventh Amendment immunity

also fail because they do not affirmatively address the Fitchik factors at all. Estate of Lagano y.

Bergen Cty. Prosecutor's Office, 769 F.3d 850, 857-58, 585 n.8 Gd Cir. 2014) (“Fitchik controls

the Eleventh Amendment inquiry.”). Discussion of the Fitchik factors is necessary, and failure to

do so prevents Eleventh Amendment immunity from applying because “the party asserting

Eleventh Amendment immunity bears the burden of proving entitlement to it.” See Brady, 2020

WL 5088634 at *3 (quoting Robinson v. Paulhus, No. 19-12572, 2020 WL 2732132 at #2 (D.N.J.

May 22, 2020)),

Therefore, the Court must deny both University Defendants’ and Prosecutor-Defendants’

Motions to Dismiss to the extent they rely on the application of Eleventh Amendment immunity.

B. §1983 Claims

Next, the Court will turn to Plaintiff's §1983 claims. To prevail on a claim under $1983,

“a plaintiff must prove that his constitutional rights were violated by someone acting under color

of state law.” Rodriguez v. Fajardo, No. 06-4996, 2007 WL 1959254 at *7 (D.N.J. Jul. 3, 2007)

(internal citations and quotations omitted). “Generally, a public employee acts under color of state

law while acting in his official capacity or while exercising his responsibilities pursuant to state

law.” Traynor v. Billhimer, No. 21-7463, 2023 WL 2214178 at *6 (D.N.J. Feb. 24, 2023) (quoting

Willson v. Yerke, 604 Fed. App’x 149, 150 n.4 (3d Cir. 2015)). However, “a state employee who

pursues purely private motives and whose interaction with the victim is unconnected with his

execution of official duties does not act under color of law[.]” Walker v, City of Newark, No. 19-

16853, 2020 U.S. Dist. LEXIS 115437 at *t4 (D.N.J. Jul. 1, 2020) Gnternal citations and

quotations omitted). For example, when a police officer entered the home of a man and assaulted

him over exposing an affair with his wife, he was not acting under the color of State law because

the assault was of a personal nature that did not involve his role as a police officer. See Stroby vy.

Egg Harbor Twp., 754 F. Supp. 2d 716, 720 (D.N.J. 2010). The court in Stroby noted that the

actions the police officer took did not invoke any indicia of his State-given powers (i.e., he did not

invoke any legal authority over the victim, such as displaying his badge, utilize any of his police-

issued weapons, nor made any attempt to arrest the victim), See id.

Here, the Court finds a similar lack of connection between Defendant Blaskiewicz’s role

as a professor and the alleged conduct. The Complaint is devoid of any allegations that Defendant

Blaskiewiez engaged in any of the alleged behavior while performing, or in connection with, his

role at the University. The Complaint asserts that Defendant Blaskiewicz created fake social media

accounts, sent harassing or threatening email messages, and lied to the police to initiate criminal

proceedings, (ECF No. 1 at 31-36, 38-40). However, there are no facts in the Complaint to even

suggest that Defendant Blaskiewicz utilized any of his State-given powers as a university professor

to engage in the alleged conduct.

Simply put, the facts as plead do not support Plaintiff's §1983 claims against Defendant

Blaskiewicz and the Court must dismiss these claims.

In contrast, the Complaint does assert facts to demonstrate that the Prosecutor-Defendants’ _

actions were connected to their performance of their official duties when they were prosecuting

the State case against Plaintiff, (with the exception of Defendant Attorney General Grewal).*

* To state a claim against an individual government defendant in a civil rights action, a complaint must allege how

that defendant had personal involvement in the wrongdoing, See Evancho y, Fisher, 423 F.3d 347, 353 (3d Cir,

2005) (“The Third Circuit has held that a civil rights complaint is adequate where it states the conduct, time, place,

and persons responsible.”). The requirement of personal involvement is required even where a plaintiff tries to hold

a defendant accountable under respondeat superior or supervisory liability. Saisi vy. Murray, 822 Fed. App’x 47, 48

(3d Cir. 2020). A defendant cannot be held liable “simply because of his position as the head of [an agency].” Jd.

Here, Plaintiff fails to provide any facts whatsoever to show how Defendant Attorney General Grewal was involved

454

However, officials acting in their “official capacity” are not “persons” for the purposes of §1983

or the NJCRA and therefore cannot be held liable for violations thereunder in their official

capacities, See Will y. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither

a State nor its officials acting in their official capacities are ‘persons’ under §1983.”); Didiano v.

Balicki, 488 ¥. App’x 634, 637-39 (3d Cir. 2012) (holding that the “person” should not be

interpreted differently under the NJCRA than in the context of §1983); see also Estate of Martin,

649 F. App’x at 245 n.4°

Therefore, the Court will dismiss Plaintiffs claims against Defendant Atlantic County

Prosecutot’s Office because the Prosecutor’s Office is not a “person” pursuant to $1983, and

Plaintiff has not identified any individual Prosecutor to be sued in their personal capacity.

However, because Plaintiff has identified Defendant Detective Mattioli who can be sued pursuant

to §1983 in his personal capacity, this Court will review Plaintiff's $1983 claims against him. See

Hafer v. Melo, 502 U.S. 21 (1991).

i. Immunity Defense of Defendant Detective Mattioli

Defendant Detective Mattioli contends that he is immune from suit. Two kinds of immunity

can apply to those sued in their personal capacity under §1983: absolute immunity and qualified

immunity. Harlow vy. Fitzgerald, 457 U.S. 800, 807 (1982). In determining whether absolute

immunity is applicable the Court must engage in a “functional” analysis of each alleged activity,

Id. at 811. Three factors determine whether a government official should be given absolute

in the underlying State case. The Complaint does not provide any information as to the time or place, or any facts to

demonstrate that Defendant Attorney General Grewal participated in, or was even aware of, the alleged conduct to

demonstrate his personal involvement. Aside from Defendant Attorney General Grewal’s naine appearing in the

case’s caption and in the subheadings of Counts 1-3, there is no other acknowledgement of his involvement in this

matter, Therefore, the Court must dismiss all claims against Defendant Attorney General Grewal for failure to state a

claim pursuant to Fed. R. Civ. P. 8{a).

5 Hereafter, while the Court will only reference the $1983 claims for brevity and clarity, the analysis also

encompasses the NJCRA claims.

qty

immunity for a particular function: 1) whether there is “a historical or common law basis for the

immunity in question;” 2) whether performance of the function poses a risk of harassment or

vexatious litigation against the official; and 3) whether there exist alternatives to damage suits

against the official as means of redressing wrongful conduct. Kulwicki vy. Dawson, 969 F.2d 1454,

1463 (3d Cir. 1992) (citations omitted). The Third Circuit has determined that prosecutors, and

other individuals serving in a similar capacity, are afforded absolute immunity when their acts are

“fntimately associated with the judicial phase of the criminal process” such as “initiating a

prosecution and... presenting the State’s case.” Yarris v. County of Delaware, 465 F.3d 129, 135

(3d Cir. 2006) (quoting fmbler v. Pachtman, 424 U.S. 409, 431 (1976)).

Further, grand jury witnesses—including law enforcement witnesses—are entitled to

absolute immunity from any claim based on their testimony, See Rehberg y. Paulk, 566 U.S. 356,

367 (2012). The solicitation of even false testimony from witnesses in grand jury proceedings, as

well as the use of false testimony in connection with further prosecution, is “absolutely protected.”

Kulwicki, 969 F.2d at 1465,

Here, Plaintiff alleges that Defendant Detective Mattioli reviewed fabricated social media

accounts and provided false testimony about these accounts to the Grand Jury. (ECF No. 1 at 440).

Because grand jury witnesses, including law enforcement witnesses, are entitled to absolute

immunity from any claims based on their testimony, all claims related to Defendant Detective

Mattioli’s testimony must be dismissed,

Regarding Plaintiff's other allegations against Defendant Detective Mattioli, it is unclear

from the Complaint whether, and to what extent, Defendant Detective Mattioli had participated in

the underlying investigation, (aside from reviewing the materials provided by Defendant

Blaskiewicz for purposes of his grand jury testimony), and whether he was involved in the decision

1A

to institufe the criminal proceedings against Plaintiff. The Complaint makes broad, general

allegations related to all Defendants and does not assert any specific facts about Defendant

Detective Mattioli’s actions for the Court to assess. Because a complaint must contain “more than

an unadorned, the-defendant-unlawfully-harmed-me accusation[s],” Plaintiff's remaining claims

against Defendant Detective Mattioli must be dismissed. Ashcroft, 556 U.S. at 678.

C. Monell and Respondeat Superior Claims against Defendant Galloway

Township

Plaintiff baldty asserts that Defendant Galloway Township is responsible for violating his

due process rights, engaging in malicious prosecution and abuse of process, utilizing false

evidence, intentionally inflicting emotional distress, defamation of character, and violating

Plaintiff's civil rights. Although Defendant Galloway Township is an entity and not an individual

directly engaging in these violations, Plaintiff asserts that it should be held responsible for these

violations through the doctrine of respondeat superior and through the application of the Monel/

Doctrine. However, these doctrines are not interchangeable and are only applicable in specific

situations.

For instance, the Mone/!l Doctrine only applies when a plaintiff brings a §1983 claim

against a municipality. For a municipality to be held Hable under §1983, there must be a direct

causal link between a municipal policy or custom and the alleged constitutional deprivation. City

of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989), It is not enough to identify conduct properly

attributable to the municipality: a plaintiff must also demonstrate that, through its deliberate

conduct, the municipality was the “moving force” behind the injury alleged. Belin v. O'Neill, No.

17-13207, 2019 WL 6493942 at *3 (D.N.J. Dec. 3, 2019) (citing Vulcan Pioneers of New Jersey

v. City of Newark, No, 02-5802, 2008 WL 4224941 at *4 (D.N.J. Sept. 10, 2008), aff'd, 374 F.

App’x 313 Gd Cir, 2010)).

te

In contrast, respondeat superior is a legal doctrine where a court may impose vicarious

liability on the employer of a person who has committed an independent tort. Williams v. Verizon

Ine., No. 19-09350, 2020 WL 1227663 at *11 (D.N.J. Mar. 12, 2020). To establish that an

employer should be held liable for an employee’s tortious acts, a plaintiff must show: that the

wrongdoer is employed by the defendant, that acts or omissions caused injuries or damages to

others, and that the employee committed the acts or omissions within the scope of his or her

employment, “/.e., when the employee was performing the services for which he or she had been

engaged,” Jd. (citing Davis v. Devereux Found., 209 N.J. 269, 287 (2012); 23 Restatement

(Second) of Agency § 219 (1958)).

Most importantly, the doctrine of respondeat superior cannot be applied to municipalities

like Defendant Galloway Township in the context of a §1983 claim. “For constitutional torts

[under $1983] or the analogous provisions of the New Jersey Civil Rights Act, there is no

respondeat superior liability. Municipal liability for the acts of employees must be premised on

[the Monell Doctrine].” Abdallah v. City of Paterson, No. 16-4660, 2017 U.S. Dist. LEXIS 82135

at *8-9 (D.N.J, May 26, 2017).

Here, Plaintiff asserts two constitutional torts that must be premised on the Monell

Doctrine: violation to his due process rights and violation of his civil rights concerning the “failure

to implement appropriate policies, customs, and practices.” (ECF No. 1 at §955-58, 89-91).

However, Plaintiff does not state sufficient facts to assert a Monell claim. For Defendant Galloway

Township to be held liable under the Mone// Doctrine, Plaintiff has to present a municipal policy

or custom and assert that it had a causal connection to his alleged deprivation. The Complaint does

not point to any policy, custom, or practice related to Galloway Township at all. Moreover, the

Complaint is deficient as to any facts that could conceivably establish a Mone// claim, let alone

te

provide the necessary facts to show deliberate conduct on the part of Defendant Galloway

‘Township to demonstrate it was the “driving force,” behind the deprivation Plaintiff asserts.

Next, Plaintiff asserts several non-constitutional torts, however, these claims also cannot

survive against Defendant Galloway Township due to a lack of factual support. To establish that

an employer should be held liable for an employee’s tortious acts under the respondeat superior

doctrine, Plaintiff must show that there was an employee of Defendant Galloway Township

involved in the complained of conduct. Plaintiff has not identified any employee or agent of

Defendant Galloway Township involved in the State case. With no employees or agents for

Defendant Galloway Township to be vicariously responsible for, respondeat superior cannot apply

to any other tort in the Complaint as alleged.®

Therefore, the Court must grant Defendant Galloway Township’s Motion to Dismiss for

failure to state a claim pursuant to Fed. R. Civ. P. 8(a).

D. New Jersey Tort Claims Act

All claims concerning the New Jersey Tort Claims Act (“NJTCA”) must be dismissed. The

NJTCA requires that: “[n]o action shall be brought against a public entity or public employee

under this [A]ct unless the claim [is]... presented in accordance with the procedure set forth in

this [Act}.” N.J.S.A. 59:8-3. The caselaw clearly establishes that “a claimant will be ‘forever

barred’ from recovery against a public employee or entity if she fails ‘to file the claim with the

public entity within 90 days of accrual.’” Handley v. University, No. 21-16889, 2022 WL 4115730

at *15 (D.N.J. Sept. 9, 2022) (quoting McNellis-Wallace v. Hoffman, 464 N.J. Super. 409, 417,

236 A.3d 1014 (App. Div. 2020).

6 Further, a public entity like Defendant Galloway Township cannot be held liabie for the intentional torts of a public

employee. See Panarello v. City of Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. 2016), Intentional torts must be

effectuated through the NJTCA.

14

While the procedure requires a written notice be filed with the public entity within 90 days

ofa ciaim’s accrual, N.JLS.A. 59:8-9 provides an exception:

A claimant who fails to file notice of his claim within 90 days as

provided in section 59:8-8 of [the Tort Claims Act], may, in

discretion of a judge[], be permitted to file such notice at any time

within one year after the accrual of his claim provided that the public

entity or the public employee has not been substantially prejudiced

thereby. Application to the court for permission to file a late notice

of claim shall be made upon motion supported by affidavits based

upon personal knowledge of the affiant showing sufficient reasons

constituting extraordinary circumstances for his failure to file notice

of claim within the period of time prescribed by section 59:8-8 of

[the Tort Claims Act] or to file a motion seeking leave to file a late

notice of claim within a reasonable time thereafter{. |

N.J.S.A. 59:8-9,

To assess whether a claimant submitted timely notice according to the NJTCA requires the

Court to perform a three-step sequential analysis: it must determine when the cause of action

accrued, whether a notice of claim was filed within 90 days, and whether extraordinary

circumstances exist to justify filing a late notice. See Handley, 2022 WL 4115730 at *15.

According to the act, “[a]ccrual shall mean the date on which the claim accrued.” N.J.S.A. 59:8-

1, New Jersey caselaw establishes that the date of accrual of a tort claim is the date on which the

negligent action or omission occurred. See Vasquez v. Rutherford, No. 07-1350, 2007 WL 2137937

at *4 (D.N.J. Jul. 23, 2007) (citing Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). The only

exception to this standard occurs when the victim of the tort is cither not aware of the injury, or

the victim is unaware that a third party is responsible for the injury. See id.

First, in the instant case, the accrual of the claim began on January 27, 2022. With the Court

providing the most generous reading of the Complaint, Plaintiff knew that he was injured by the

Defendants in the ways he alleged by January 27, 2022, the day the Atlantic County Prosecutor’s

Office declined to re-try the State case. See (ECF No. 1 at $49). This was the last action any

490

Defendant allegedly took against Plaintiff. By January 27, 2022, Plaintiff was fuliy aware of the

State case that was brought against him, had access to the records showing who was involved in

that matter, and had incurred the harms that form the basis of his Complaint.

Tuming to the second element of the sequential analysis, Plaintiff has not provided the

written notice within 90 days as required. Plaintiff asserts that he provided notice to Defendants,

citing to an email titled “Notice of Tort and Civil Complaint” that he sent to Defendant Stockton

University in his first attempt at serving his Complaint. (ECF No. 14, Ex. Aé& B). However, the

record does not show a notice of tort claim being sent to any of Defendants. (/d.); see also (ECF

No. 9 at Ex. A) (showing an affidavit from the Department of the Treasury stating that there are

no records of any Notice of Claim from Plaintiff filed for any Defendant in this matter). Simply

titlng an email “Notice of Tort and Civil Complaint” to one Defendant while attempting to

improperly serve them a complaint is not sufficient to demonstrate that Plaintiff intended to file an

NJTCA claim.

Third, Plaintiff does not identify any extraordinary circumstances that would justify his

failure to comply with the notice requirement within the 90-day time frame. Rather, Plaintiff

argues that as a pro se litigant he is entitled to the application of the substantial compliance doctrine

and that he is still within the one-year window to request an extension of time.

The doctrine of substantial compliance can only be applied to the mandatory notice

procedures of NITCA when a plaintiff had provided “notice, [that was] both timely and in writing,

[but] had technical deficiencies that did not deprive the public entity of the effective notice

contemplated by the statute.” Meale vy. City of Egg Harbor City, No. 14-5860, 2015 WL 3866222,

at *4-5 (D.N.J. An. 23, 2015) (quoting D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130,

159 (2013)). To avail himself of an extension as provided by the NJTCA, Plaintiff must show

in

“sufficient reasons constituting extraordinary circumstances for [the plaintiff's] failure to file

notice of claim within the period of time prescribed,” only if the plaintiff files a late notice “within

one year after the accrual of his claim,” Niblack v. SCO Malbreen, No. 15-5298, 2016 WL 1628881

at *3 (D.NJ. Apr. 25, 2016) (quoting N.J. Stat. Ann. § 59:8-9),

Here, Plaintiff cannot request an extension because he did not provide notice that “was

timely filed and in writing but was technically deficient” pursuant to the requirements of the

statute. Meale, 2015 WI 3866222, at *4-5. Additionally, Plaintiff has not provided any reason,

much less extraordinary circumstances, as to why he has failed to timely file his claims to justify

receiving an extension,

Therefore, the Court must dismiss Plaintiff's NJTCA claims against all Defendants.

An

CONCLUSION

For the reasons set forth above, University Defendants’ Motion to Dismiss (ECF No. 9)

and Prosecutor-Defendants’ Motion to Dismiss (ECF No. 16), will be GRANTED IN PART

AND DENIED IN PART. Defendant Galloway Township’s Motion to Dismiss (ECF No. 13)

will be GRANTED. An order consistent with this Opinion will be entered.

Le

May 15, 2023 “fos WAS. Yor: se

KAREN M. WILLIAMS, U.S.D.J.