COELLO v. DILEO

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

YASMINE COELLO,

Plaintiff, Civil Action No: 20-1682 (SDW)(LDW)

v. OPINION

LOUIS M.J. DILEO, et al.,

September 21, 2023

Defendants.

WIGENTON, District Judge.

Before this Court is Defendants Louis M.J. DiLeo, Nicholas P. Scutari, Richard J.

Gerbounka, and City of Linden’s (“City”) (collectively, “Linden Defendants”) Motion to Dismiss

(D.E. 28, 67 (“Motion”))1 Plaintiff Yasmine Coello’s (“Plaintiff”) First Amended Complaint (D.E.

23 (“FAC”)) pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Jurisdiction is proper

pursuant to 28 U.S.C. § 1331 and § 1367(a). Venue is proper pursuant to 28 U.S.C. § 1391. This

opinion is issued without oral argument pursuant to Rule 78 and Local Civil Rule 78.1. For the

reasons stated herein, the Motion is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

On January 17, 2007, non-party Shirley Messina (“Messina”) filed a citizen’s complaint in

Linden Municipal Court against Plaintiff, alleging that Plaintiff had harassed her. (D.E. 23 ¶¶ 17–

18.) At the time, Plaintiff was dating David Figueroa (“Figueroa”), Messina’s ex-boyfriend. (Id.

1 The Linden Defendants’ original Motion to Dismiss was filed on July 23, 2020. (D.E. 28.) After the case was

remanded by the Third Circuit (D.E. 62), the Linden Defendants filed supplemental briefing to this Court in support

of their Motion on April 24, 2023. (D.E. 67, 69.)

¶¶ 18–20.) The charge was initially dismissed, but later reinstated, although neither the reason for

the dismissal nor the reinstatement are included in the record. (Id. ¶¶ 17–22.) On February 26,

2007, Kathleen Estabrooks, Esq. (“Estabrooks”)2, who was “simultaneously representing Messina

in other civil actions against Figueroa . . . in Superior Court of Union County, Family Court,”

sought appointment to serve as the acting prosecutor of Messina’s complaint. (Id. ¶¶ 23–24.) Prior

to being appointed, Estabrooks was required to submit an affidavit disclosing any conflicts of

interest, indicating whether the municipal prosecutor, Nicholas P. Scutari (“Scutari”), had elected

not to prosecute the matter, and averring that there were “no other facts that could reasonably affect

the impartiality of the private prosecutor and the fairness of the proceedings or otherwise create an

appearance of impropriety.” (Id. ¶¶ 24–26.) Estabrooks’ affidavit did not disclose that she was

representing Messina in Family Court and did not certify that Scutari had declined to prosecute

Plaintiff’s case. (Id. ¶ 27, Ex. A.)

On March 6, 2007, Municipal Court Judge Louis M.J. DiLeo (“DiLeo”) “presided over the

trial in the matter of State v. Coello, SC 2007-007130, with Estabrooks serving as acting

prosecutor.” (Id. ¶ 33.) Plaintiff alleges that during the trial, and over her counsel’s objection,

“DiLeo had [her] removed from the courtroom while the prosecution’s witness testified” and also

cross-examined her. (Id. ¶¶ 34–35.) DiLeo found Plaintiff guilty “of the petty disorderly persons

offense of [h]arassment pursuant to N.J.S.A. 2C:33-4(a) and sentenced her to a $300.00 fine,

$34.00 in court costs and thirty (30) days in jail . . . .” (Id. ¶ 37.) Plaintiff’s jail sentence was

suspended “on the condition that [she] attend twenty-six (26) weeks of anger management

counseling . . . .” (Id.)

2 Estabrooks was, at all relevant times, the “principle [sic], agent and/or employee” of Defendant Kathleen Estabrooks,

P.C., a “duly formed professional corporation of the State of New Jersey providing legal services.” (D.E. 23 ¶ 10.)

On or about January 7, 2008, Estabrooks allegedly sent a letter to DiLeo requesting

confirmation that Plaintiff had completed the anger management counseling and informing the

court that Messina had filed another complaint against Plaintiff. (Id. ¶ 38.) In response, DiLeo

held a post-trial hearing on January 16, 2008, at which Plaintiff appeared without counsel,

Estabrooks appeared as counsel for Messina, and no municipal prosecutor appeared. (Id. ¶¶ 39–

41.) At this hearing, DiLeo allegedly assumed the role of a municipal prosecutor and did not

conduct any inquiry concerning whether Plaintiff had waived her right to counsel as required by

State v. Crisfali, 128 N.J. 499 (1992). (Id. ¶¶ 42, 44.) DiLeo then reinstated Plaintiff’s jail

sentence, and Plaintiff began her incarceration on the same day. (Id. ¶¶ 45–51.)

Plaintiff hired new counsel, who filed a motion for reconsideration of sentence on January

18, 2008. (Id. ¶¶ 52–56.) Estabrooks opposed the motion, but no formal opposition was submitted

by the municipal prosecutor. (Id. ¶¶ 57–60.) DiLeo held oral argument on January 30, 2008,

although the record does not reflect what occurred, and Plaintiff was freed on February 3, 2008,

after serving eighteen days in jail. (Id. ¶¶ 58–61.)

In 2016, Plaintiff moved to vacate her conviction. (Id. ¶ 63.) No opposition was filed, and

the motion was granted on February 26, 2018. (Id. ¶¶ 63–65, Ex. C, D.) Plaintiff’s record was

expunged on November 19, 2018. (Id. ¶¶ 71–72, Ex. F.)

On February 18, 2020, Plaintiff filed suit in this Court alleging that all Defendants’ actions

in the municipal court proceedings violated her constitutional and statutory rights. (D.E. 1.) On

July 1, 2020, Plaintiff filed the FAC. (D.E. 23.) All then-named Defendants3 moved to dismiss in

July 2020 and the parties timely completed briefing. (D.E. 27–32.) On October 21, 2020, this

3 In addition to the Linden Defendants, Plaintiff brought this civil rights action against Estabrooks, Kathleen

Estabrooks, P.C. (together with Estabrooks, “Estabrooks Defendants”), John Doe(s) 1-10, and ABC Entities 1-10.

Plaintiff has since settled with the Estabrooks Defendants. (D.E. 48–49.)

Court dismissed with prejudice Plaintiff’s § 1983 and § 1985 claims (Counts One to Eight) as

time-barred but denied the motions to dismiss as to Plaintiff’s remaining claims (Counts Nine to

Eleven). (D.E. 33–34.) Plaintiff’s motion for reconsideration (D.E. 35) was also denied (D.E. 40),

and Plaintiff appealed. (D.E. 52.)

On August 8, 2023, the Third Circuit vacated this Court’s dismissal of Plaintiff’s § 1983

and § 1985 claims (D.E. 62), holding they were timely filed pursuant to the holding of Heck v.

Humphrey, 512 U.S. 477, 489 (1994). See Coello v. DiLeo, 43 F.4th 346, 356 (3d Cir. 2022).

Accordingly, the case was remanded for this Court to consider the other arguments raised by the

Linden Defendants in their motion to dismiss, including whether any of those Defendants is

entitled to immunity from this action. See id. The parties timely completed supplemental briefing

as ordered by Magistrate Judge Leda D. Wettre. (D.E. 67–69.)

II. LEGAL STANDARD

An adequate complaint must be “a short and plain statement of the claim showing that the

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This Rule “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted); see also Phillips v. Cnty. of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a showing, rather than a blanket

assertion, of an entitlement to relief” (internal quotation marks and citation omitted)).

In considering a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips, 515 F.3d at 231 (citation omitted). However, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); see also Fowler v. UPMC

Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the

allegations in a complaint are “plausible” is “a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the

complaint should be dismissed for failing to “show[] that the pleader is entitled to relief” as

required by Rule 8(a)(2). Id.

III. DISCUSSION

The FAC asserts various claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and New Jersey

state law, for violations of Plaintiff’s rights pursuant to the United States and New Jersey

constitutions. Specifically, Plaintiff alleges that the Linden Defendants: violated her right to

counsel, right to confront witnesses, and right to a fair trial (Counts One and Two); violated her

right to substantive due process (Counts Three through Five); and conspired to violate her civil

rights (Counts Six and Seven). In addition, Plaintiff contends that the City and Gerbounka should

be held liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) for violating her

constitutional rights (Count Eight).

Section 1983 provides in relevant part:

[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983. That statute, standing alone, does not create any rights; it merely provides a

means to redress violations of federal law committed by state actors.4 See Baker v. McCollan, 443

U.S. 137, 144 n.3 (1979). Meanwhile, 42 U.S.C. § 1985(3) provides a remedy against private

conspiracies and conspiracies by state actors.5 See Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263, 268 (1993). Section 1985(3) creates a private right of action for persons injured by

a conspiracy formed “for the purpose of depriving, either directly or indirectly, any person or class

of persons of the equal protection of the laws, or of equal privileges and immunities under the

laws.” 42 U.S.C. § 1985(3).

The Linden Defendants argue in support of their Motion that all claims should be

dismissed, asserting immunities for DiLeo and Scutari and claiming that Plaintiff has failed to state

a claim upon which relief can be granted against Gerbounka and the City. This Court will address

each of their arguments in turn.

A. Sovereign Immunity (Counts I to VII)

Defendants DiLeo and Scutari move to dismiss all claims against them, arguing that, as a

municipal judge and a municipal prosecutor, they are entitled to sovereign immunity under the

Eleventh Amendment of the United States Constitution. See U.S. Const. amend. XI; see also

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Both DiLeo and Scutari

failed to meet their burden of showing that they are “arms of the state.” Fitchik v. N.J. Transit

4 To bring a § 1983 claim, “a . . . plaintiff [must] prove two essential elements: (1) that the conduct complained of

was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of rights,

privileges, or immunities secured by the Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d 313,

319 (3d Cir. 2011).

“[C]ivil claims for violations of the New Jersey Constitution can only be asserted by way of the New Jersey Civil

Rights Act” (“NJCRA”) N.J.S.A. 10:6-1 et seq. Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 548 (D.N.J.

2013). Because the NJCRA is “interpreted analogously to Section 1983,” this Court’s § 1983 analysis controls

Plaintiff’s NJCRA and New Jersey constitutional claims as well (Counts II, IV, and V). O’Toole v. Klingen, 14-6333,

2017 WL 132840, at *5 (D.N.J. Jan. 13, 2017); see also Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J.

2011) (noting that the NJCRA “was modeled after 42 U.S.C. § 1983”).

Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989) (en banc) (“If [a defendant] is not an arm

of the state, [E]leventh [A]mendment immunity will not attach.”).

The Eleventh Amendment “immunize[s] an unconsenting state ‘from suits brought in

federal courts by her own citizens as well as by citizens of another state.’” Id. at 658–59 (quoting

Pennhurst, 465 U.S. at 100 (internal quotation marks and citation omitted). A suit brought against

an actor, state agency, or department that is in essence “an arm of the state” is also barred by the

Eleventh Amendment. Id. at 658. The Eleventh Amendment does not, however, bar suits against

an official in his or her individual capacity, even if the relevant actions were part of the official’s

governmental duties. Hafer v. Melo, 502 U.S. 21, 30–31 (1991).

A defendant is characterized as an “arm of the state,” and is also entitled to immunity from

suit under the Eleventh Amendment, when a judgment against it “would have had essentially the

same practical consequences as a judgment against the State itself.” Fitchik, 873 F.2d at 659.

Whether a defendant is an “arm of the state” is determined by balancing three factors (the “Fitchik

factors”): (1) whether the payment of the judgment would come from the state treasury; (2) what

status the defendant has under state law; and (3) what degree of autonomy the defendant

has. Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 2006) (citing Fitchik, 873 F.2d at

659). Each factor is accorded equal weight in the immunity analysis. Karns v. Shanahan, 879

F.3d 504, 515 (3d Cir. 2018). A defendant bears the burden to establish his entitlement to

sovereign immunity. Fitchik, 873 F.2d at 659.

As for the first factor, the Third Circuit has observed that “‘the crux of the state-treasury

criterion’ is not whether the state will be the principal source of any funding, but rather whether

the state is ‘legally responsible for the payment of [the] judgment.’” Karns, 879 F.3d at 515

(alteration in original) (quoting Febres, 445 F.3d at 233). Despite having the burden, DiLeo and

Scutari do not address the substance of the first factor, i.e., they do not opine on whether the

Treasury of the State of New Jersey would be liable for any judgment arising from this suit.

Therefore, DiLeo and Scutari have not met their burden with respect to the first factor. See Fitchik,

873 F.2d at 662 (finding that “the funding factor weigh strongly against [the defendant]” when the

state has no obligation to pay for the defendant’s judgments); Murphy v. Middlesex Cnty., No. 15-

7102, 2017 WL 6342154, at *6 (D.N.J. Dec. 12, 2017) (denying Eleventh Amendment immunity

because defendant’s briefing did not address the first factor).

The second and third Fitchik factors are interrelated. Kirkland v. DiLeo, 581 F. App’x 111,

117 (3d Cir. 2014). The second factor requires an inquiry into “whether state law treats [a

municipal judge or a municipal prosecutor] as independent, or as a surrogate for the

state.” Fitchik, 873 F.2d at 662. The third factor requires an inquiry into a municipal judge or a

municipal prosecutor’s “degree of autonomy” in relation to the state. The greater a defendant’s

autonomy, the more likely it is that he is subject to suit under 42 U.S.C. § 1983.

DiLeo has not met his burden in proving the second and third Fitchik factors.6 As an initial

matter, DiLeo does not dispute that: he was an employee of the City; he was appointed by the

Mayor of Linden; and the Linden City Council and Mayor Gerbounka were responsible for

oversight and supervision of Linden Municipal Court, as well as DiLeo. (FAC ¶¶ 3, 7, 201.) These

facts suggest that DiLeo is not a “surrogate of the state” and that he has a notable degree of

autonomy in relation to the State of New Jersey.

DiLeo, citing Kagan v. Caroselli, 30 N.J. 371, 379 (1959) and its progeny, stresses that the

State has administrative control of the municipal courts. Those cases, however, are not dispositive.

6 DiLeo’s arguments for sovereign immunity are virtually identical to those he made in Kirkland v. DiLeo, 581 F.

App’x. 111 (2014)—a facturally similar case against DiLeo in his official capacity as the City of Linden’s municipal

judge. In Kirkland, the Third Circuit affirmed the District Court’s conclusion that DiLeo failed to meet his burden to

establish his entitlement to sovereign immunity. Kirkland, 581 F. App’x. at 116–17.

The New Jersey statute governing the municipal courts explicitly confers onto municipalities

numerous powers related to the appointment and compensation of the municipal judge and the

operation and management of the municipal courts. See N.J.S.A. 2B:12-1 et seq. Moreover, the

case law since Kagan has evolved, and at least one other court in this District has “observed the

blurry line between a municipality and its municipal court.” Kneisser v. McInerney, No. 15-7043,

2018 WL 1586033, at *1 (D.N.J. Mar. 30, 2018) (concluding that the Municipal Court of

Burlington Township can be held liable for constitutional injuries under § 1983 because the

Municipal Court is an arm of the Township). Therefore, DiLeo has not met his burden in showing

that he is entitled to sovereign immunity.

Scutari has similarly failed to meet his burden in proving the second and third Fitchik

factors. First, like DiLeo, Scutari does not dispute Plaintiff’s allegations that he was an employee

of the City, was appointed by the Mayor of Linden, and was subject to the supervision and

oversight of Gerbounka and the Linden City Council. (D.E. 23 ¶¶ 4, 7, 201.) Moreover, the cases

upon which Scutari relies are inapposite and not binding on this Court. For example, Wright v.

Borough of Buena, No. 05-4782, 2006 WL 1644869, at *5 (D.N.J. June 12, 2006) and State v.

Clark, 744 A.2d 109, 111 (2000) both cite to a state law provision governing municipal courts,

N.J.S.A. 2B:12-27,7 for the proposition that it is the State that controls municipal prosecutors.

Other provisions in the New Jersey Statutes, however, give municipalities a notable degree

of control over the municipal prosecutor position. For example, a municipality has the power to:

(1) appoint municipal prosecutors; (2) extend a municipal prosecutor’s term of appointment

7 New Jersey state law provides that “[t]he governing body of the county or municipality may employ an attorney-at-

law as a prosecutor, under the supervision of the Attorney General or county prosecutor, who may represent the State,

county or municipality in any matter within the jurisdiction of the central municipal court or any other municipal court

in accordance with the provisions of P.L.1999, c. 349 (C.2B:25-1 et al.).” N.J.S.A. 2B:12-27. This provision is clearly

permissive—i.e., a municipality is not required to employ a municipal prosecutor under the supervision of the State.

beyond one year; (3) determine the compensation for a municipal prosecutor; and (4) remove a

municipal prosecutor from office. See N.J.S.A. 2B:25-4(a)-(d); N.J.S.A. 2B:25-6(a); N.J.S.A.

2B:25-9. Therefore, Scutari has not met his burden of showing that the second and third Fitchik

factors weigh in his favor.

Because none of the Fitchik factors weigh in favor of DiLeo and Scutari, they are not

entitled to sovereign immunity at this stage. See Kirkland, 581 F. App’x at 117 (“The fact that

Judge DiLeo failed to prove even a single Fitchik factor is enough to deny his motion to dismiss.”).

Plaintiff’s claims against Scutari and DiLeo are permitted to go forward.

B. Absolute Judicial Immunity (Counts I to VII)

Defendant DiLeo seeks to dismiss all claims against him on grounds of absolute judicial

immunity, contending that the allegations in the FAC involve acts that are judicial actions. DiLeo

is not entitled to absolute judicial immunity because Plaintiff has sufficiently pled an exception to

judicial immunity in the FAC.

Judicial immunity shields a judge, who is performing his duties, from lawsuits seeking

monetary damages. Mireles v. Waco, 502 U.S. 9, 11 (1991); Gallas v. Sup. Ct. of Pa., 211 F.3d

760, 768 (3d Cir. 2000). There are, however, two exceptions to judicial immunity: “First, a judge

is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the

complete absence of all jurisdiction.” Mireles, 502 U.S. at 11–12 (citing Stump v. Sparkman, 435

U.S. 349, 356–57 (1978)). If the FAC contains allegations that, taken as true, sufficiently establish

that either exception applies, DiLeo’s motion to dismiss claims against him on grounds of absolute

judicial immunity must be denied. See id.; see also Gallas, 211 F.3d at 768–73.

The application of the first exception turns on two factors: (1) “the nature of the act

itself, i.e., whether it is a function normally performed by a judge,” and (2) “the expectations of

the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump, 435 U.S. at 362.

Here, the FAC sufficiently alleges numerous instances of misconduct that, taken as true,

would not be functions normally performed by a judge. For example, Plaintiff alleges that DiLeo

cross-examined her at her trial, and, at her post-trial hearing, assumed the role of a prosecutor and

refused to allow her or her Pastor to testify about her substantial compliance with the court-ordered

anger management program. (D.E. 23 ¶¶ 38–41.) These acts were not functions normally

performed by a judge because, as the Third Circuit explained in Kirkland, “DiLeo was no longer

acting as a neutral arbiter of disputes, but as a prosecutor or advocate.” 581 F. App’x at 115. Nor

could the parties have expected DiLeo, as the presiding judge, to participate in a criminal trial and

post-trial hearing to such an extent.8 See United States v. Ottaviano, 738 F.3d 586, 595 (3d Cir.

2013) (“[A] judge must not abandon his [or her] proper role and assume that of an advocate.”).

The FAC plausibly alleges that DiLeo’s conduct went beyond mere legal error, to the point

that DiLeo was no longer truly functioning as a judge. Accordingly, DiLeo is not entitled to

judicial immunity at this stage.

C. Absolute Prosecutorial Immunity (Counts I to VII)

Defendant Scutari seeks to dismiss all claims against him on grounds of absolute

prosecutorial immunity. Because Scutari has failed to show that his alleged misconduct was

8 This Court does not suggest that a municipal court proceeding must incorporate all of the procedural safeguards of

a felony trial, or that a judge may never question a witness. When a judge assumes the role of a prosecutor in a trial

over which he or she presides, however, that judge exceeds the scope of the judicial immunity shield. See United

States v. Wilensky, 757 F.2d 594, 597–98 (3d Cir. 1985) (holding that trial judge’s interruptions and extensive

examination during both direct and cross-examination of a key defense witness “overstep[ped] the bounds of prudent

judicial conduct”). The FAC adequately alleges that DiLeo did just that.

serving a prosecutorial or advocacy function associated with the judicial phase of Plaintiff’s case,

he is not entitled to absolute prosecutorial immunity.

While the Supreme Court has extended the defense of absolute immunity to certain

prosecutorial functions, actions of a prosecutor are not per se immune to lawsuits. See Fogle v.

Sokol, 957 F.3d 148, 159 (3d Cir. 2020) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993). When determining whether a prosecutor’s conduct is entitled to absolute immunity, the

inquiry must “focus upon the functional nature of the activities rather than [the prosecutor’s]

status.” Id. (alteration in original) (internal quotation marks omitted). This functional test

“separates advocacy from everything else, entitling a prosecutor to absolute immunity only for

work intimately associated with the judicial phase of the criminal process.” Id. at 159–60 (internal

quotation marks and citation omitted). For instance, “prosecutors are immune from claims arising

from their conduct in beginning a prosecution, including soliciting false testimony from witnesses

in grand jury proceedings and probable cause hearings, presenting a state’s case at trial, and

appearing before a judge to present evidence.” Id. at 160 (internal quotation marks and citations

omitted). “Determining the precise function that a prosecutor is performing is a fact-specific

analysis.” Id. A defendant has the burden of showing that “the conduct triggering absolute

immunity clearly appear[s] on the face of the complaint.” Id. at 161 (alteration in original) (internal

quotation marks and citations omitted).

Courts must apply a two-step analysis to determine whether a defendant is entitled to

absolute immunity. See id. First, the court must “ascertain just what conduct forms the basis for

the plaintiff’s cause of action.” Id. (internal quotation marks omitted). Second, it must “determine

what function (prosecutorial, administrative, investigative, or something else entirely) that act

served, to determine whether the Prosecutors have carried their burden of showing that such

immunity is justified for the function in question.” Id. (internal quotation marks and citations

omitted).

Using this two-step framework, this Court concludes that Scutari is not, at this stage,

entitled to prosecutorial immunity. The FAC alleges that Scutari: (1) failed to appear as the

municipal prosecutor at Plaintiff’s post-trial hearing on January 16, 2008, and there was no other

municipal prosecutor present for this hearing; (2) failed to respond or take any action in response

to Plaintiff’s post-trial counsel’s “Motion for Reconsideration of Sentence” and request for an

immediate hearing regarding Plaintiff’s incarceration and a stay of Plaintiff’s sentence pending

appeal; (3) countenanced the practice, policy, and custom of the Linden Defendants to deny

litigants the right to counsel; (4) and relinquished his role as municipal prosecutor to DiLeo and

other unauthorized individuals. (D.E. 23 ¶¶ 41, 52, 57, 58, 74.) None of those acts or omissions

is “intimately associated with the judicial phase of the criminal process,” Fogle, 957 F.3d at 160,

and Scutari fails to raise any persuasive arguments to the contrary. See Buckley, 509 U.S. at 273

(“A prosecutor’s administrative duties and those investigatory functions that do not relate to an

advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled

to absolute immunity.”). Simply put, accepting as true the allegations in the FAC, this Court

cannot conclude that Scutari’s alleged failure to perform his prosecutorial duties falls within the

category of prosecutorial function. Accordingly, Scutari is not entitled to prosecutorial immunity.

D. Qualified Immunity (Counts I to VII)

Defendant Scutari argues that he is shielded from liability arising from his allegedly

“improper transfer” of prosecutorial duties to DiLeo and other unauthorized individuals. (D.E. 67

at 30). Scutari is not entitled to qualified immunity, however, because the FAC adequately alleges

that Scutari’s conduct violated Plaintiff’s constitutional rights, which were clearly established at

the time when the alleged injuries occurred.

The purpose of qualified immunity is to hold public officials accountable where their power

is used “irresponsibly,” and to shield them from “harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, (2009). It is meant to

protect “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). “[T]he burden of pleading a qualified immunity defense rests with the

defendant, not the plaintiff.” Thomas v. Indep. Twp., 463 F.3d 285, 293 (3d Cir. 2006).

To determine whether qualified immunity applies, courts must engage in a two-part

inquiry: (1) do the allegations in the complaint, viewed in a light most favorable to the party

asserting the injury, show that defendant’s conduct violated a constitutional right, and (2) was the

constitutional right clearly established at the time of the alleged violation. Pearson, 555 U.S. at

232. Courts have the discretion to consider either prong of the two-part analysis first. Id. at 236.9

A right is “clearly established” when at the time of the challenged conduct, “the contours

of a right are sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation

marks, alterations, and citation omitted). The Third Circuit has made clear that “qualified

immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face

of the complaint.” Thomas, 463 F.3d at 291.

9 Qualified immunity under the NJCRA “tracks the federal standard.” Brown v. State, 230 N.J. 84, 98 (2017) (holding

that determining whether a governmental official is entitled to qualified immunity requires a two-step inquiry: (1)

whether “the facts, taken in the light most favorable to the party asserting the injury . . . show the officer’s conduct

violated a constitutional right”; and (2) whether “that constitutional right was clearly established at the time that

defendant acted”).

The FAC alleges a violation of constitutional rights that have long been recognized by the

courts in this circuit. See e.g., Kneisser, 2018 WL 1586033, at *6 (holding that a defendant’s right

to counsel is “well established” by the Sixth Amendment); Schneyder, 653 F.3d at 330 (“[A]n

individual in custody has a constitutional right to be released from confinement after it was or

should have been known that the detainee was entitled to release.”) (internal quotation marks and

citation omitted). Scutari’s counterarguments are unavailing and/or cannot be resolved at this

nascent stage of the litigation.

As to the second prong, Scutari avers, in conclusory fashion, that “it is clear to a reasonable

prosecutor . . . that his conduct was not unlawful in the situation he confronted” (D.E. 67 at 30)

but does not explain why a reasonable prosecutor would not have thought or known that Scutari’s

alleged knowing relinquishment and transfer of his prosecutorial duties to DiLeo and Estabrooks

violated Plaintiff’s constitutional rights. This Court is not aware of, and Scutari has not cited any,

state law that permits a municipal judge to both preside over a case and function as the prosecutor

in the courtroom.

Taking Plaintiff’s allegations as true, Scutari’s alleged knowing participation in enabling

a practice, policy, and custom to violate criminal defendants’ constitutional rights in the Linden

Municipal Court is not entitled to qualified immunity at this stage.

E. Scutari’s Personal Involvement (Counts I to VII)

Defendant Scutari argues that all claims against him should be dismissed because Plaintiff

fails to sufficiently plead any personal involvement. Scutari’s argument is unpersuasive because

the FAC sufficiently alleges his personal involvement in violating Plaintiff’s constitutional rights.

“An individual government defendant in a civil rights action must have personal

involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of

respondeat superior. Personal involvement can be shown through allegations of personal direction

or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)

(internal quotation marks, alteration, and citation omitted). The Third Circuit has held that “a civil

rights complaint is adequate where it states the conduct, time, place, and persons responsible.” Id.

(citation omitted).

Here, Plaintiff alleges facts that, if proven, would show Scutari’s personal involvement in

the violation of her constitutional rights in her prosecution, conviction, and subsequent

imprisonment. The FAC pleads with sufficient particularity that: (1) Scutari relinquished his

prosecutorial duties to DiLeo and other unauthorized individuals by maintaining a custom,

practice, and/or policy of not appearing in the Linden Municipal Court when it was in session; (2)

Scutari knew or should have known this custom, practice, and/or policy enabled and perpetuated

the violation of constitutional rights of individuals appearing before the Linden Municipal Court;

(3) Scutari did not appear as the municipal prosecutor at Plaintiff’s trial and post-trial hearing and

failed to respond or take any action to respond to Plaintiff’s motions while she was incarcerated;

and (4) as a result of Scutari’s knowing action and omission, Plaintiff was deprived of her federal

and state constitutional rights. (D.E. 23 ¶¶ 41, 52, 57, 59, 74, 84, 120, 124, 125, 127–30.) These

allegations sufficiently state the conduct, time, place, and persons responsible. Thus, the

FAC adequately alleges Scutari’s personal involvement.

F. Claims Against Gerbounka in His Official and Individual Capacity (Counts I to

VIII)

Defendant Gerbounka seeks dismissal of all counts against him in his individual and

official capacity, claiming he did not have any personal involvement or knowledge in Plaintiff’s

case nor did he have supervisory authority over Scutari or DiLeo. (D.E. 67 at 31–34.)

Gerbounka’s contentions miss the mark.

Starting with claims against Gerbounka in his official capacity, “a supervisor may be

personally liable under § 1983 if he or she participated in violating the plaintiff’s rights, directed

others to violate them, or, as the person in charge, had knowledge of and acquiesced in his

subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586

(3d Cir. 2004). Allegations of “actual knowledge and acquiescence” must be made with

“appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

As an initial matter, Plaintiff has sufficiently pled that Gerbounka had supervisory authority

over DiLeo and Scutari. As discussed earlier in this Opinion, DiLeo and Scutari are not “arms of

the state” and that the City of Linden and Gerbounka had at least some control over DiLeo and

Scutari. In addition, public records10 show that DiLeo and Scutari were both removed from their

positions by the Mayor of Linden and the Linden City Council, supporting the conclusion that

Gerbounka and the City had supervisory authority over DiLeo and Scutari. (See D.E. 68 at 17

n.8.)

Plaintiff also has sufficiently alleged knowledge and acquiescence on the part of

Gerbounka. In particular, Plainitff claims that, as the Mayor of Linden, Gerbounka: (1) was

responsible for oversight and supervision of Linden Municipal Court, as well as DiLeo and Scutari;

(2) had notice and/or knowledge of the improper conduct and practices of DiLeo and Scutari, and

that their improper conduct and practices had led to the wrongful conviction, illegal sentencing

and incarceration of numerous other individuals appearing before the Linden Municipal Court,

including Plaintiff; (3) took no remedial action to prevent or address DiLeo’s and Scutari’s

10 In ruling on a motion to dismiss, “a district court relies on the complaint, attached exhibits, and matters of public

record.” Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007) (“[J]udicial proceedings constitute public records

and that courts may take judicial notice of another court’s opinions.”).

improper conduct or practice; and (4) acted in concert with and conspired amongst the other Linden

Defendants to conduct municipal court proceedings in a manner to deprive litigants, including

Plaintiff, of their constitutional rights. (D.E. 23 ¶¶ 7, 122–23, 136, 201–04, 215–16.) Therefore,

Plaintiff has stated a supervisory claim against Gerbounka in his official capacity.

Likewise, Plaintiff has stated claims against Gerbounka in his individual capacity.

“Personal involvement on the part of a defendant in the alleged wrong is required in § 1983

actions” and “can be shown through allegations of personal direction or of actual knowledge and

acquiescence.” Rode, 845 F.2d at 1207. As discussed previously, Plaintiff has sufficiently pled

knowledge and acquiescence, thereby satisfying the personal involvement element. For the

forgoing reasons, Gerbounka is not entitled to dismissal of claims against him in his official and

individual capacity.

G. Municipal (Monell) Liability (Count VIII)

The City seeks to dismiss Plaintiff’s Monell claim for governmental entity liability under

§ 1983. The City’s argument is without merit because Plaintiff has sufficiently alleged that her

constitutional injuries were the result of the City’s policies, customs, or practices.

In a federal civil rights action, municipal liability may not be founded on the theory of

respondeat superior. Monell, 436 U.S. at 691. Instead, a government entity may be held liable

“when execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. at 694; accord Bielevicz v. Dubinon, 915

F.2d 845, 849–50 (3d Cir. 1990). “Policy is made when a ‘decisionmaker possess[ing] final

authority to establish municipal policy with respect to the action’ issues an official proclamation,

policy, or edict.” Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur

v. City of Cincinnati, 475 U.S. 469, 481 (1986)). Custom, on the other hand, can be demonstrated

“by showing that a given course of conduct, although not specifically endorsed or authorized by

law, is so well-settled and permanent as virtually to constitute law.” Bielevicz, 915 F.2d at 850

(citations omitted).

Here, Plaintiff alleges that the City is liable because “[t]he actions of [the Linden

Defendants] . . . were not an isolated incident but rather a long-standing custom, policy and practice

by the Linden Defendants to deny the accused their rights.” (D.E. 23 ¶ 73.) Specifically, DiLeo

allegedly testified to the Supreme Court of New Jersey’s Advisory Committee on Judicial Conduct

that he “relied upon the Court’s prior practice” in denying counsel to defendants and committing

other due process violations. (Id.) Further, without the benefit of discovery, Plaintiff cites similar

misconduct in other cases in front of the Linden Municipal Court, including the criminal of

prosecution of the plaintiffs in Kirkland, 581 F. App’x at 113. (Id. ¶¶ 95–118.) As stated

previously in this Opinion, Plaintiff has sufficiently alleged that Gerbounka had knowledge of and

acquiesced in Scutari’s and DiLeo’s improper practices, which led to the violation of the

constitutional rights of individual defendants appearing before the Linden Municipal Court,

including Plaintiff.

At the motion to dismiss stage, these allegations suffice to set forth a plausible claim that

the City of Linden tacitly endorsed a practice, policy, or custom of denying defendants their

constitutional rights. See Kirkland v. DiLeo, No. 12-1196, 2013 WL 1651814, at *7 (D.N.J. Apr.

15, 2013), aff’d, 581 F. App’x 111 (3d Cir. 2014) (denying motion to dismiss Monell claims against

the City because plaintiffs alleged that “[t]he severe and pervasive Constitutional violations were

the long standing practice and policies of the City of Linden”). Therefore, the City is not entitled

to dismissal of Plaintiff’s Monell claim.

H. Conspiracy Claim under § 1985 and State Common Law (Counts VI and VII)

The Linden Defendants argue that Plaintiff’s conspiracy claims should be dismissed

because the factual allegations in the FAC are insufficient to state a claim. This argument is

unpersuasive because Plaintiff has sufficiently pled the elements of a conspiracy claim.

Section 1985 permits a plaintiff to bring a claim that two or more people have acted

together to deprive him of his civil rights. 42 U.S.C. § 1985(3). To establish a § 1985 conspiracy

claim, a plaintiff must show:

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

person or class of persons of the equal protection of the laws, or of equal privileges

and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)

whereby a person is either injured in his person or property or deprived of any right

or privilege of a citizen of the United States.

United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29, (1983)). Section 1985(3),

however, does not create any substantive rights, but permits individuals to enforce substantive

rights against conspiring private parties. See Marino v. Bowers, 657 F.2d 1363, 1371 (3d Cir.

1981).

The allegations in the FAC sufficiently “raise a right to relief above the speculative level”

to withstand a motion to dismiss. (D.E. 23 ¶¶ 201–02); Twombly, 550 U.S. at 555 (internal

quotation marks omitted). In Kirkland, the Third Circuit held that the allegations, which were

similar to those in Plaintiff’s FAC, were sufficient to state a conspiracy claim under § 1985. See

Kirkland, 581 F. App’x at 118–19. Plaintiff’s allegations—by specifically alleging the requisite

elements of who was involved in the conspiracy, when the conspiracy occurred and what the

conspiracy entailed—go even further than those pled in Kirkland.

As for Plaintiff’s common law conspiracy claim, its viability will depend on the viability

of the federal claims because this Court’s exercise of supplemental jurisdiction depends on the

jurisdictional and substantive merits of the federal claims.11 See 28 U.S.C. § 1367. Plaintiff has

adequately pled conspiracy claims under both § 1985 and state common law. Accordingly, this

Court denies the Linden Defendants’ motion to dismiss Plaintiff’s § 1985 and common law

conspiracy claims.

IV. CONCLUSION

For the reasons set forth above, the Linden Defendants’ Motion to Dismiss the FAC is

DENIED. An appropriate order follows.

___/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Leda D. Wettre, U.S.M.J.

Parties

11 Common law civil conspiracy has “similar requirements” as § 1985(3) conspiracy. Major Tours, Inc. v. Colorel,

720 F. Supp. 2d 587, 610 (D.N.J. 2010); see also Galicki v. New Jersey, No. 14-169, 2015 WL 3970297, at *9 (D.N.J.

June 29, 2015) (requiring a complaint alleging New Jersey common law conspiracy to include “the who, what, when,

where, and how of the conspiracy”). The elements of common law civil conspiracy are: “(1) a combination of two

or more persons; (2) a real agreement or confederation with a common design; (3) the existence of an unlawful

purpose, or of a lawful purpose to be achieved by unlawful means; and (4) proof of special damages.” Morganroth &

Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 414 (3d Cir. 2003) (citations omitted).