MATTIACCIO v. SCHARFENBERG

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SALVATORE MATTIACCIO, et al.,

Plaintiffs,

Civil Action No. 23-23037 (GC) (TJB)

v.

OPINION

WILLIAM SCHARFENBERG, et al.

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon two Motions to Dismiss the Complaint

(ECF No. 1) pursuant to Federal Rule of Civil Procedure (Rule) 12(b)(6). Defendant Dave

Scalabrini filed a Motion to Dismiss on January 29, 2024. (ECF No. 8.) Defendants Bradley

Billhimer, Joseph Coronato, Christopher Heisler, Mark Malinowski, William Scharfenberg,

Stephen Shadiack, and the Ocean County Prosecutor’s Office (collectively, the Remaining Moving

Defendants) filed a joint Motion to Dismiss on July 31, 2024. (ECF No. 37.) Plaintiffs opposed

both Motions. (ECF Nos. 11, 41.) All Defendants replied. (ECF Nos. 12, 42.) The Court

requested supplemental briefing, which was filed on March 12 and 13, 2025. (ECF Nos. 49, 50.)

The Court has carefully reviewed the parties’ submissions and decides the matter without oral

argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below,

and other good cause shown, Defendant Scalabrini’s Motion (ECF No. 8) is GRANTED, and the

Remaining Moving Defendants’ Motion (ECF No. 37) is GRANTED in part and DENIED in

part.

I. BACKGROUND1

On December 12, 2023, Plaintiffs Salvatore and Jane Mattiaccio, along with their

businesses Level and Square Construction and Remodeling, LLC, and Level and Square

Construction, LLC (Level and Square)2 (collectively, Plaintiffs) sued various entities and

individuals, including William Scharfenberg, Assistant Ocean County Prosecutor and owner of

Beacon Homes of NJ, LLC and Christopher Heisler, Assistant Ocean County Prosecutor

(individually and in their official capacities) (collectively, the Prosecutor Defendants); Beacon

Homes of NJ, LLC;3 Joseph Coronato and Bradley Billhimer, Ocean County Prosecutors

(individually and in their official capacities);4 the Ocean County Prosecutor’s Office (the OCPO);

Dave Scalabrini, Mark Malinowski, and Stephen Shadiack, detectives in the OCPO (collectively,

the Detective Defendants);5 Prosecutor John Does 1-20 (presently unidentified Assistant Ocean

1 On a motion to dismiss under Rule 12(b)(6), the Court must accept all facts as true, but

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted).

Plaintiffs attach supplemental certifications and documents to their Opposition to Defendants’

Motions to Dismiss. (ECF Nos. 11, 41.) Because “it is axiomatic that the complaint may not be

amended by the briefs in opposition to a motion to dismiss,” the Court will not consider any new

facts or arguments set forth in these briefs. Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836

F.2d 173, 181 (3d Cir. 1988) (internal quotation marks omitted).

2 While the caption lists “Level and Square Construction and Remodeling LLC” and “Level

and Square Construction, LLC” as two separate companies, the Complaint otherwise describes

them as a single entity. Thus, the Court will refer to both companies as “Level and Square.”

3 Defendant Beacon Homes has answered the Complaint. (ECF No. 13.) Accordingly, all

claims against them shall proceed.

4 Defendant Coronato is incorrectly pled as “Joseph Coronado.”

5 Defendant Shadiack is incorrectly pled as “Stephen Shadiak.”

County Prosecutors); Investigator Richard Roes 1-20 (presently unidentified employees of the

Ocean County Prosecutor’s Office). (See generally ECF No. 1.)

Plaintiffs allege that Scharfenberg, in concert with the other Defendants, illegally pursued

three separate criminal actions against them over a business rivalry. Plaintiffs bring claims under

42 U.S.C. § 1983 and the Declaratory Judgment Act as well as state law claims.6

Plaintiffs are owners of Level and Square, a construction company located in Point

Pleasant, New Jersey. (Id. ¶¶ 16-18.) Following Hurricane Sandy in 2012, eligible homeowners

received financial grants to rebuild or repair their storm-damaged homes under New Jersey’s

Reconstruction, Rehabilitation, Elevation, and Mitigation (“RREM”) Program. (Id. ¶ 33.) Before

contracting with RREM grant recipients, construction businesses were required to apply for

admission to the program’s qualified pool of builders. (Id. ¶ 34.) In 2013, the New Jersey

Department of Community Affairs (NJDCA) certified Level and Square as a qualified builder,

allowing the company to begin contracting with RREM recipients in some of New Jersey’s hardest

hit communities, including Brick, Toms River, and Point Pleasant. (Id. ¶ 22.) Level and Square

competed against forty-seven other RREM qualified builders for the same prospective customers

who had their homes damaged by Hurricane Sandy. (Id. ¶¶ 24, 35.) One such competitor was

Beacon Homes, which Scharfenberg owned and operated in the same Ocean County communities

as Level and Square. (Id. ¶¶ 23-24.)

Plaintiffs accuse Scharfenberg of operating Beacon Homes from the premises of the OCPO

and contend that Scharfenberg’s operation of Beacon Homes while simultaneously serving as an

assistant county prosecutor violated New Jersey ethics laws. (Id. ¶ 31). Plaintiffs allege that

6 The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

“[Ocean County Prosecutor] Corona[t]o and others at OCPO were aware of and permitted

Scharfenberg’s operation of Beacon Homes at and through the OCPO.” (Id. ¶ 32 (emphasis

added).) Plaintiffs further allege that Scharfenberg “[failed] to obtain permissions from the

Prosecutor as the law required.” (Id. ¶ 42.) Plaintiffs claim that Scharfenberg’s ownership in

Beacon Homes motivated his pursuit of criminal investigations and prosecutions against Plaintiffs.

(Id. ¶ 4.)

A. The RREM Application Case

Plaintiffs allege that Scharfenberg and the other Defendants undertook an improper

investigation into Plaintiffs’ RREM “New Home Builder” application that was submitted to the

NJDCA in 2013. (Id. ¶ 57.) According to Plaintiffs, the “focal point” of the investigation was Mr.

and Mrs. Mattiaccio’s response to “Schedule B, Section 3C, question vi” of the application. (Id. ¶

60.) Mrs. Mattiaccio checked “no” in response to the question and Mr. Mattiaccio did not answer.

(Id. ¶¶ 60-62.) In doing so, Mr. and Mrs. Mattiaccio allegedly failed to disclose a “2008

conviction.” (Id. ¶ 70.) The Complaint does not provide any further allegations regarding the

2008 conviction. Plaintiffs’ Complaint states that “the [D]efendants investigated the [application]

matter in 2014,” but Plaintiffs provide no details as to the specific Defendants involved or the

outcome of the investigation. (Id. ¶ 56.)

In 2017, the investigation allegedly led to the indictment of both Mr. and Mrs. Mattiaccio

for “tampering with paperwork” (the Application Indictment). (Id. ¶¶ 44, 56, 68.) Plaintiffs state

that after Mr. Mattiaccio’s arrest in May 2017, he sent a letter to the Point Pleasant Police

Department “demanding that the proposed [charges] be dismissed due to lack of prosecution.” (Id.

¶ 43.) In “response to [his] demands, Plaintiffs were charged with 17 counts of ‘tampering with

paperwork.’” (Id. ¶ 44.)

Scharfenberg presided over the grand jury presentment in June 2017, and Detective

Scalabrini gave testimony. (Id. ¶¶ 53-55.) During the presentment, Plaintiffs allege that the OCPO

failed to disclose exculpatory evidence. (Id. ¶ 72.)7 For example, Defendants allegedly failed to

disclose to the grand jury that Plaintiffs had previously submitted various applications to New

Jersey state agencies in which they did disclose “the 2008 conviction at issue.” (Id. ¶¶ 70-71.)

According to Plaintiffs, these previous disclosures indicate that their failure to disclose the

conviction on the RREM application was a mistake rather than an intentional omission. (Id.)

During the grand jury presentment, Defendants also “chose to present extraneous

evidence concerning a 1991 conviction and prior applications in a manner designed to intentionally

confuse and mislead the jury.” (Id. ¶ 69.) In doing so, Plaintiffs allege that the OCPO “[v]iolated

the plaintiffs’ Rights to Due Process and Fundamental Fairness by Suppressing Exculpatory

Evidence.” (Id. ¶ 78(d).) Mr. Mattiaccio “[pled] guilty . . . to two counts of tampering with

paperwork in order to get Jane Mattiaccio’s indictments dismissed” and was sentenced to two years

probation. (Id. ¶ 45.)

B. The Stecz Case

In March 2018,8 Mr. Mattiaccio “became embroiled in a contract dispute” over a new home

that Level and Square was preparing to build for Elizabeth Stecz. (Id. ¶¶ 37, 46.) After Stecz

cancelled her contract, Mr. Mattiaccio refused to issue her a refund, claiming that her cancellation

7 The Complaint also states that Detective Malinowski “participated in the prosecution,

investigation, and wrongful and unlawful actions taken against the plaintiffs.” (Id. ¶ 67.) Plaintiffs

provide no specific details about Malinowski’s role.

8 Although the Complaint states “March 2016,” the Court assumes for purposes of

Defendants’ Motions that Plaintiffs are referring to March 2018, as the allegations in the Complaint

largely pertain to 2018. (Compare id. ¶ 37, with ¶ 46.)

was improper and “demanded to proceed to [a]rbitration.” (Id. ¶¶ 38-39.) Instead of resolving the

problem with Level and Square directly, Stecz allegedly contacted Detective Shadiack “to

improperly and unlawfully initiate and conduct a criminal investigation into what in reality was

only a civil suit.” (Id. ¶ 40.) Mr. Mattiaccio was arrested in connection with Stecz’s complaint on

May 25, 2018. (Id. ¶ 50.)

Plaintiffs claim that Defendants “either intentionally failed to conduct a proper

investigation . . . or intentionally and willfully ignored exculpatory evidence.” (Id. ¶ 81.)

Additionally, Plaintiffs allege that Defendants (under Scharfenberg’s direction) once again failed

to present exculpatory evidence to the grand jury regarding Stecz’s complaint. (Id. ¶ 100.)

According to Plaintiffs, the grand jury was not informed that Stecz’s cancellation of the contract

was delivered late and to the incorrect address. (Id.) Defendants also allegedly omitted the fact

that Plaintiffs “had demanded arbitration, which would indicate that the plaintiffs desired to

properly have the matter adjudicated as opposed to perpetrating fraud and crimes[.]” (Id.) Mr.

Mattiaccio was indicted, but the matter was later dismissed. (Id. ¶ 82.)

C. The Stocketta Case

Separate from the Stecz case, OCPO allegedly initiated another criminal investigation into

Mr. Mattiaccio in 2018 based on a different customer’s allegations. Plaintiffs allege that Mr.

Mattiaccio’s arrest on May 25, 2018 also resulted from this investigation. (Id. ¶ 86.) Plaintiffs

claim that a disgruntled Level and Square client, Robert Stocketta, went to Shadiack and accused

Mr. Mattiaccio of “theft of an installation.” (Id. ¶ 83.) Mr. Mattiaccio allegedly “spent three days

. . . in Ocean County Jail, where the conditions were deplorable, and the Sheriff’s officers ignored

Mr. Mattiaccio’s pleas for help.” (Id. ¶ 86.) Plaintiffs state that the arrest was improper given that

Shadiack was aware of Plaintiffs’ long-standing disagreement with Stocketta. A year prior,

Plaintiffs allegedly went to Shadiack to alert him that Stocketta was “causing a problem with

regard to delivery of the elevator,” and copied Shadiack on an email in which Stocketta threatened

to have Plaintiffs arrested. (Id. ¶ 84.) According to Plaintiffs, neither Scharfenberg nor Shadiack

disclosed this information to the grand jury. (Id. ¶¶ 85, 102.) Plaintiffs also allege that Defendants

provided information regarding the Stecz and Stocketta criminal investigations to media outlets in

May 2018. (Id. ¶ 50.) While the Stocketta case was ultimately dismissed in November 2020,

Plaintiffs allege that Mr. Mattiaccio “continues to endure harassing comments and reviews online

via Nextdoor App [ ] [a]nd Facebook, in addition to receiving letters to his office.” (Id. ¶¶ 85-86.)

II. LEGAL STANDARD

A. Rule 12(b)(1): Lack of Subject Matter Jurisdiction

Under Rule 12(b)(1), a defendant may move at any time to dismiss the Complaint for lack

of subject matter jurisdiction on either facial or factual grounds. Gould Electr. Inc. v. United States,

220 F.3d 169, 176 (3d Cir. 2000). A facial challenge asserts that “the complaint, on its face, does

not allege sufficient grounds to establish subject matter jurisdiction.” Iwanowa v. Ford Motor Co.,

67 F. Supp. 2d 424, 438 (D.N.J. 1999). In analyzing a facial challenge, a court “must only consider

the allegations of the complaint and documents attached thereto, in the light most favorable to the

plaintiff.” Gould Electr. Inc., 220 F.3d at 176. “A court considering a facial challenge construes

the allegations in the complaint as true and determines whether subject matter jurisdiction exists.”

Arosa Solar Energy Sys., Inc. v. Solar, Civ. 18-1340, 2021 WL 1196405, at *2 (D.N.J. March 30,

2021).

A factual challenge, on the other hand, “attacks allegations underlying the assertion of

jurisdiction in the complaint, and it allows the defendant to present competing facts.” Hartig Drug

Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016). The “trial court is free to weigh

the evidence and satisfy itself as to the existence of its power to hear the case” and “the plaintiff

will have the burden of proof that jurisdiction does in fact exist.” Petruska v. Gannon Univ., 462

F.3d 294, 302 n.3 (3d Cir. 2006) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d

884, 891 (3d Cir. 1977)). “Therefore, a 12(b)(1) factual challenge strips the plaintiff of the

protections and factual deference provided under 12(b)(6) review.” Hartig Drug Co., 836 F.3d at

268.

Rule 12(b)(1) “provides for the dismissal of a proceeding for lack of subject-matter

jurisdiction . . . including lack of jurisdiction due to Eleventh Amendment immunity.” Nemeth v.

Off. of the Clerk of the N.J. Superior Ct, Civ. 19-16809, 2020 WL 2537754, at *2 (D.N.J. May 19,

2020). State sovereign immunity under the Eleventh Amendment “is a jurisdictional bar which

deprives federal courts of subject matter jurisdiction.” Wright v. N.J. Dep’t of Educ., 115 F. Supp.

3d 490, 494 (D.N.J. 2015). Once a challenge to jurisdiction is raised under Rule 12(b)(1), the

plaintiff bears the burden of demonstrating the existence of subject-matter jurisdiction. See

McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).

B. Rule 12(b)(6): Failure to State a Claim

On a motion to dismiss for failure to state a claim, courts “accept the factual allegations in

the complaint as true, draw all reasonable inferences in favor of the plaintiff, and assess whether

the complaint and the exhibits attached to it ‘contain enough facts to state a claim to relief that is

plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131, 140 (3d Cir. 2023) (quoting

Watters v. Bd. of Sch. Dir. of City of Scranton, 975 F.3d 406, 412 (3d Cir. 2020)). “A claim is

facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” Clark v. Coupe, 55

F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372

(3d Cir. 2019)). When assessing the factual allegations in a complaint, courts “disregard legal

conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys LLC v. Thanoo, 999 F.3d

892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion bears the burden of

“showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. & Prod. Liab.

Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis v. Wells Fargo, 824 F.3d 333, 349

(3d Cir. 2016).

III. DISCUSSION

Defendants raise numerous grounds for dismissing the claims against them. First, the

Eleventh Amendment bars Plaintiffs’ claims. Second, Defendants are not “persons” amenable to

suit under § 1983. Third, absolute immunity bars Plaintiffs’ civil rights claims. Fourth, Plaintiffs’

civil rights claims are time barred. Fifth, Plaintiffs fail to state a claim under Rule 12(b)(6). Sixth,

the New Jersey Tort Claims Act (NJTCA) bars the state law claims. Seventh, the NJTCA’s

qualified immunity provisions shield Defendants from liability. The Court will address each

argument in turn.

A. Eleventh Amendment Sovereign Immunity

Defendants move to dismiss the Complaint based on Eleventh Amendment sovereign

immunity. (ECF No. 37-1 at 11.) 9 The Eleventh Amendment protects non-consenting states from

suits brought in federal court by private citizens seeking money damages. Pennhurst State School

& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Sovereign immunity applies to state agencies

9 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

and their employees as long as the state is the “real party in interest.” Fitchik v. N.J. Transit Rail

Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989).

In Fitchik, the Third Circuit laid out a three-factor test for sovereign immunity: (1)

“[w]hether the money that would pay the judgment would come from the state,” (2) “[t]he status

of the agency under state law,” and (3) [w]hat degree of autonomy the agency has.” Id. at 659.

“Fitchik provides the proper framework for analyzing Eleventh Amendment sovereign immunity

as it applies to county prosecutors.” Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d

850, 857–58 (3d Cir. 2014).

“When county prosecutors and their subordinates are involved in the investigation and

enforcement of the State’s criminal laws, they perform a function that has traditionally been the

responsibility of the State.” Wright v. State, 778 A.2d 443, 464 (N.J. 2001). Indeed, “[c]ourts

within the Third Circuit have consistently held that the Eleventh Amendment precludes federal

suits against New Jersey county prosecutors, as well as their offices, arising out of their law

enforcement functions on the basis that the real party in interest in these suits is the State of New

Jersey.” Duncan v. Office of Passaic Cnty. Prosecutor, Civ. No. 05-1931, 2012 WL 1079471, at

*2 (D.N.J. Mar. 30, 2012); see also Beightler v. Office of Essex Cnty. Prosecutor, 342 Fed. App’x

829, 832 (3d Cir. 2009) (holding that the Essex County Prosecutor’s Office “was acting as an arm

of the state and entitled to immunity under the Eleventh Amendment” when its prosecutors were

performing law enforcement and investigative functions); Hyatt v. County of Passaic, 340 F.

App’x 833, 837 (3d Cir. 2009) (finding that county prosecutor’s office was entitled to sovereign

immunity because defendants were acting in a prosecutorial function which is not autonomous

from the state). “Decisions such as whether to bring charges are clearly within the ‘law

enforcement function[s] . . . that the Legislature has delegated to the county prosecutors.’” Rouse

v. N.J. Dep’t of Health & Hum. Servs., Civ. 15-01511, 2015 WL 5996324, at *3 (D.N.J. Oct. 13,

2015) (quoting Wright, 778 A.2d at 462).

Here, because Defendants’ alleged misconduct involved the state function of investigation

and the enforcement of the criminal laws, Defendants are considered arms of the state, and the

State is therefore responsible for any judgment against them under Fitchik’s first factor. Wright,

169 N.J. at 462–463 (stating that when “county prosecutors and their subordinates act in their law

enforcement/investigatory capacity, they act as agents and officers of the State. . . . When their

conduct in that context is actionable, the State should be made to respond to damages”). This

designation applies not only to the OCPO, but also to all of its employees including the County

Prosecutors, Assistant Prosecutors and Detective Defendants when sued in their official capacity.

See Evans v. City of Newark, Civ. No. 14-00120, 2016 WL 2742862, at *11 (D.N.J. May 10, 2016)

(finding all Essex County Prosecutor Office (“ECPO”) defendants—including investigators and

detectives employed by the ECPO—to be acting as “arms of the state”).

Second, the Court must look to the status of the agency under state law, i.e. whether “state

law treats an agency as independent, or as a surrogate for the state.” Fitchik, 873 F.2d at 662.

County prosecutors are “appointed by the Governor with the advice and consent of the [State]

Senate” under the New Jersey Constitution. N.J. Const. art. VII, § 2, ¶ 1. OCPO’s designation as

a “constitutionally established office” satisfies the second Fitchik factor. Rouse, 2015 WL

5996324, at *3 (holding that the Hudson County Prosecutor’s Office, as a “constitutionally

established office,” satisfied the second Fitchik factor).

Finally, the Court considers Defendants’ degree of autonomy from the state. New Jersey

law dictates that “the criminal business of the State” is “prosecuted by the Attorney General and

the county prosecutors.” N.J. Stat. Ann. § 2A:158-4. The New Jersey Attorney General may

intervene or take over any case that county prosecutors initiate. N.J. Stat. Ann. § 52:17B-106; see

also Murphy v. Middlesex Cnty., Civ. No. 15-7102, 2017 WL 6342154, at *6 (D.N.J. Dec. 12,

2017) (finding under the third Fitchik factor that “County Prosecutor’s offices and their employees

are subject to supervision and supersession by the Attorney General when engaged in the criminal

business of the State” (internal quotation marks omitted)); Hof v. Janci, Civ. No. 17-295, 2017

WL 3923296, at *4 (D.N.J. Sept. 7, 2017) (concluding that the Hudson County Prosecutor’s Office

was not autonomous because the office and its employees are “subject to supervision and

supersession by the Attorney General”). Accordingly, the OCPO and its employees are not an

autonomous entity when performing its prosecutorial functions such as investigating, arresting, or

prosecuting Plaintiffs.

Here, based upon the application of the Fitchik factors, the Court finds that the OCPO is

an “arm of the state” and sovereign immunity bars any claim for damages against the OCPO as

well as the Assistant County Prosecutors and the Detective Defendants in their official capacities.

Kaul v. Christie, 372 F. Supp. 3d 206, 243 (D.N.J. 2019); Estate of Bardzell v. Gomperts, 515 F.

Supp. 3d 256, 267 n.6 (D.N.J. 2021) (“[A] suit against a state official in his or her official capacity

is not a suit against the official but rather is a suit against the official’s office. As such, it is not

different from a suit against the state itself.”) (quoting Allen v. N.J. State Police, 974 F.3d 497, 506

(3d Cir. 2020)).

The doctrine of Ex Parte Young, 209 U.S. 123 (1908), dictates that a plaintiff may bring a

suit against state agencies and officials—notwithstanding the Eleventh Amendment’s

jurisdictional bar—when the plaintiff seeks prospective injunctive relief to end a continuing

violation of federal law. Delaware River Joint Toll Bridge Comm’n v. Sec’y Pa. Dep’t of Lab. &

Indus., 985 F.3d 189, 193 (3d Cir. 2021).10 This exception “requires [the Court] to ‘conduct a

straightforward inquiry into whether the complaint alleges an ongoing violation of federal law’

and whether it ‘seeks relief properly characterized as prospective.’” Id. at 193–94 (quoting Verizon

Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)).

Plaintiffs’ Complaint solely concerns past violations of state and federal law. Plaintiffs

make no allegation of “an ongoing violation of federal law [nor] seek[ ] relief properly

characterized as prospective.” Verizon Md., 535 U.S. at 645 (citations omitted). Instead, Plaintiffs

insert a passing request for injunctive relief to “prohibit[] [D]efendants from continuing any

violations against [P]laintiffs.” (ECF No. 1 ¶ 111.) Plaintiffs do not explain the nature of the

“violations” from which they seek relief and fail to allege specific facts that would allow the Court

to infer that these “violations” are ongoing. See Suring v. South River Bd. of Educ., Civ. No. 20-

2804, 2022 WL 264464, at *3 (3d Cir. Jan. 27, 2022) (holding that Ex Parte Young exception did

not apply when the plaintiff failed to include facts indicating that constitutional violations were

ongoing); Taylor v. City of Jersey City, Civ. No. 22-457, 2023 WL 6997250, at *4 (D.N.J. Oct.

24, 2023) (dismissing claims as barred by the Eleventh Amendment where the plaintiff failed to

allege specific facts from which the court might infer that the alleged civil rights violations were

ongoing).

10 There are two other exceptions to Eleventh Amendment immunity, neither of which apply

here. Plaintiffs do not argue that Congress has abrogated the Eleventh Amendment in this context.

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) (finding that Congress may abrogate

Eleventh Amendment immunity if it has “unequivocally expresse[d] its intent to” do so and acted

“pursuant to a valid exercise of power”); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 670 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). Nor is

there any indication that the State waived sovereign immunity. Coll. Sav. Bank, 527 U.S. at 670

(citing Clark v. Barnard, 108 U.S. 436 (1883)).

In sum, all claims against the OCPO, the County Prosecutors, Assistant Prosecutors, and

Detective Defendants in their official capacities are dismissed without prejudice. The Court next

addresses Defendants’ arguments regarding Plaintiffs’ claims against Defendants in their

individual capacities.11 Hafer v. Melo, 502 U.S. 21, 31 (1991).

B. Section 1983 Claims (Count I)

Under “Count I,” Plaintiffs allege that Defendants, “individually, jointly and severally and

through a conspiracy,” have deprived Plaintiffs of their “rights to due process, the presumption of

innocence, [and] the right to counsel and fundamental fairness under the Fifth, Sixth and

Fourteenth Amendments of the United States Constitution.” (ECF No. 1 ¶ 109.) They claim that

their damages include the following: “[b]eing wrongfully investigated and prosecuted, requiring

them to incur legal fees”; “[d]eprivation of their rights to the presumption of innocence, due

process and fundamental fairness, and to be free of false imprisonment”; “[d]estruction of the

plaintiffs’ right to earn a[ ] livelihood”; “[d]amage to their reputations”; and “[e]motional distress

and personal toil.” (Id. ¶ 111.) Based on these allegations, the Court construes the Complaint as

asserting malicious prosecution and false arrest claims under the Fourth Amendment and a

Fourteenth Amendment reputational damage claim.

While Plaintiffs invoke the Fifth and Sixth Amendments, there are no allegations that could

sustain a claim brought under those constitutional provisions. See Nguyen v. U.S. Catholic

Conference, 719 F.2d 52, 54 (3d Cir. 1983); see generally Edwards v. Arizona, 451 U.S. 477 (1991)

11 Although the Complaint is either silent or unclear regarding individual claims against

certain Defendants, the Court construes Plaintiffs’ claims as being asserted against all Defendants

in their individual capacities. Atwell v. Schweiker, 274 F. App’x 116, 118 (3d Cir. 2007) (citing

Melo v. Hafer, 912 F.2d 628, 636 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991)); Gregory v. Chehi,

843 F.2d 111, 119–20 (3d Cir. 1988).

(articulating the contours of a Fifth Amendment right to counsel during custodial interrogations);

Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 198 (2008) (holding that the Sixth Amendment

right to counsel attaches upon “the initiation of adversary judicial criminal proceedings—whether

by way of formal charge, preliminary hearing, indictment, information, or arraignment”).12

1. “Persons” Under § 1983 and Amenability to Suit

Scharfenberg, Heisler, Shadiack, and Malinowski argue that they are not “persons” under

§ 1983 and are not amenable to suit. (See ECF No. 37-1 at 34.) Section 1983 imposes liability on

“[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State . . . subjects . . . 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.”

42 U.S.C. § 1983 (emphasis added). Defendants deemed not to be “persons” are immune from

suit.

Individuals that are “arms of the state” for Eleventh Amendment purposes are not

considered “persons” amenable to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S.

58, 70 (1989).13 However, individual defendants named in their individual capacity are amenable

12 Plaintiffs also appear to assert a Fourteenth Amendment failure-to-investigate claim. To

the extent that such a claim is asserted, the Court will not address it here given that the Third

Circuit has not affirmatively recognized an independent cause of action for failing to conduct a

constitutionally adequate investigation. Geness v. Cox, 902 F.3d 344, 349 n.5 (3d Cir. 2018)

(noting that a Fourteenth Amendment reckless investigation claim, “if cognizable, could only arise

under the Fourth Amendment.” (citing Brooks v. City of Chi., 564 F.3d 830, 833 (7th Cir. 2009)

(observing that “[a] plaintiff cannot state a due process claim by combining what are essentially

claims for false arrest under the Fourth Amendment and state law malicious prosecution into a sort

of hybrid substantive due process claim under the Fourteenth Amendment” (citations omitted)).

13 Determining whether a defendant is a “person” under § 1983 is related to but distinct from

an Eleventh Amendment analysis. See Estate of Lagano, 769 F.3d at 857 (finding that the District

Court’s analysis “improperly conflates the jurisprudence interpreting the term ‘person’ in the

to suit as “persons” under § 1983 even if they are being sued for what are technically “official

acts.” Hafer, 502 U.S. at 27–28 (holding that, while suits against state officials in their official

capacity are “treated as suits against the State,” personal capacity suits “seek to impose individual

liability upon a government officer for actions taken under color of state law.”) (internal citations

omitted); see also Evans, 2016 WL 2742862, at *10 (“[i]ndividuals named as defendants in their

personal capacities are amenable to suit as ‘persons.’ It does not matter that they happen to be

government officials, or that the acts for which they are sued happen to be official acts”) (internal

citations omitted); Estate of Lagano, 769 F.3d at 854 n.5 (“Of course, a state official sued in his

or her personal capacity is amenable to suit under [§] 1983[.]”). Therefore, Scharfenberg, Heisler,

Shadiack, and Malinowski are amenable to suit under § 1983 in their individual capacity.

2. Absolute Immunity

Defendants also argue that all claims against them should be dismissed based on absolute

immunity. (ECF No. 37-1 at 33.) In Imbler v. Pachtman, 424 U.S. 409, 435 (1976), the Supreme

Court recognized that absolute immunity applies to prosecutors subject to § 1983 claims,

explaining that such protections were “necessary to protect the judicial process.” Id. at 437.

Without absolute immunity, the Court reasoned, the constant threat of litigation could discourage

prosecutors from taking necessary action, hampering the pursuit of justice. Id. at 425–426.

But absolute immunity is not without limits. Imbler dictates that these protections only

apply to prosecutorial activities “intimately associated with the judicial phase of the criminal

process” and not investigatory actions. Id. at 430. The purpose of this distinction is to “leave

standing those cases . . . which hold that a prosecutor engaged in certain investigative activities

context of § 1983 with the concept of Eleventh Amendment sovereign immunity. [. . . T]he two

concepts are analytically distinct”).

enjoys, not the absolute immunity associated with the judicial process, but only a good-faith

defense comparable to the policeman.” Id. A prosecutor, therefore, has absolute immunity only

for actions taken in the role of advocate for the state. Odd v. Malone, 538 F.3d 202, 207–08 (3d

Cir. 2008) (finding that to overcome the presumption against absolute immunity, “a prosecutor

must show that he or she was functioning as the state’s advocate when performing the action(s) in

question”).

Determining when absolute immunity applies is a functional analysis attaching “not to the

prosecutor as an individual, but to the nature of the function pursuant to which he acts.”

Munchinski v. Soloman, 747 F. App’x 52, 56 (3d Cir. 2018). The Third Circuit has explained that

absolute immunity applies to any action a prosecutor takes while acting in a “quasi-judicial role.”

Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992). This includes court appearances in

which a prosecutor presents evidence or makes legal arguments, as well as out-of-court behavior

“intimately associated with the judicial phases of litigation.” Id. (internal citations omitted).

While “malfeasance is no proper part of a prosecutor’s role . . . 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.” Evans, 2016 WL 2742862, at *11. “To give examples of prosecutorial

activities protected by absolute . . . immunity, soliciting false testimony from witnesses in grand

jury proceedings and probable cause hearings is absolutely protected.” Id. (quoting Kulwicki, 969

F.2d at 1465). “Use of the false testimony in connection with the prosecution is absolutely

protected.” Id. “Even interviews generating evidence to be presented to a grand jury are absolutely

protected.” Id. (quoting Kulwicki, 969 F.2d at 1465).

i. Scharfenberg

With respect to Assistant Prosecutor Scharfenberg, the Complaint alleges misconduct in

connection with Scharfenberg’s initiation of the criminal investigations against Plaintiffs and his

presentation of evidence to the grand jury. The Complaint states that Scharfenberg presided over

and directly participated in the grand jury presentments. (See ECF No. 1 ¶¶ 54, 79, 102.) Plaintiffs

fault Scharfenberg for not introducing—or failing to direct others to introduce—exculpatory

evidence during the grand jury proceedings. (See Section I, supra.) Regardless of the “rightful or

wrongful manner” in which the grand jury presentment was conducted, such actions are core to

the prosecutorial advocacy function. Evans, 2016 WL 2742862, at *11; see also Burns, 500 U.S.

at 485 (observing that in Imbler, the Supreme Court extended absolute immunity to “the knowing

use of false testimony before the grand jury”); Andors v. Gross, 294 F. App’x 731, 734 (3d Cir.

2008) (finding that prosecutors were protected by absolute immunity for their presentation to the

grand jury). Thus, those acts are afforded absolute immunity.

Scharfenberg’s decision to prosecute Plaintiffs, despite his alleged conflict of interest, is

afforded the same result.14 Absolute immunity “exists primarily to protect the discretion of

prosecutors when they act as advocates for the state.” Munchinski v. Solomon, 747 F. App’x 52,

58 (3d Cir. 2018). This discretion—or lack thereof—underpins whether a prosecutor is acting in

the role of an advocate and, thus, protected by absolute immunity regardless of the prosecutor’s

14 Similarly, the claims against Coronato are barred by absolute immunity. Plaintiffs’

singular allegation as to Coronato is that he was “aware of and permitted Scharfenberg’s operation

of Beacon Homes at and through the OCPO.” (ECF No. 1, ¶ 32.) However, whether Mr.

Mattiaccio’s prosecution was motivated by Scharfenberg’s involvement in Beacon Homes has no

bearing on the Court’s absolute immunity determination. That is, even if Mr. Mattiaccio was

prosecuted because of Scharfenberg’s involvement in Beacon Homes, the decision to prosecute

him is afforded absolute immunity. Thus, the Court dismisses without prejudice all federal claims

against Coronato.

personal motives. Kulwicki, 969 F.2d at 1464. In Kulwicki v. Dawson, the Third Circuit held that

a county district attorney was immune from suit despite directing a police officer to file baseless

charges against the District Attorney’s political rival. Id. Citing Imbler, the Kulwicki court

reasoned that “[c]onsideration of personal motives is directly at odds with the Supreme Court’s

simple functional analysis of prosecutorial immunity. . . . The Court has explicitly stated that even

groundless charges are protected, in the interest of maintaining vigorous prosecution of crime.”

Id. (citing Imbler, 424 U.S. at 424–28). Similarly, in Evans v. City of Newark, the court held that

absolute immunity protected a county prosecutor’s decision to initiate a prosecution motivated by

her desire to boost a mayor’s political campaign and gain career advancement. 2016 WL 2742862,

at *12; see also Fuchs v. Mercer Cnty., 260 F. App’x 472, 475 (3d Cir. 2008) (“Prosecutors enjoy

absolute immunity for the decision to initiate a prosecution . . . and even for failure to conduct

adequate investigation before filing charges.”) Consequently, even if Scharfenberg initiated the

prosecution for the purpose of undermining Plaintiffs’ business, that decision is afforded absolute

immunity.15

All of Scharfenberg’s actions, however, “are not absolutely immune merely because they

are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). While

immunity attaches to actions “intimately associated with the judicial phases of litigation,” it does

not attach to “administrative or investigatory actions unrelated to initiating and conducting judicial

proceedings.” Odd, 538 F.3d at 208. The determination of whether a prosecutor is acting as an

15 In Imbler, the Court emphasized that “the immunity of prosecutors from liability in suits

under § 1983 does not leave the public powerless to deter misconduct or to punish that which

occurs. . . . [A] prosecutor stands perhaps unique, among officials whose acts could deprive persons

of constitutional rights, in his amenability to professional discipline by an association of his peers.”

424 U.S. at 429–430.

advocate or in an administrative/investigatory function is a fact-specific inquiry. See Odd, 538

F.3d at 210 (noting that while “it is tempting to derive bright-line rules . . . the Supreme Court has

cautioned against such categorical reasoning”) (citing Imbler, 424 U.S. at 431). However, courts

have found, for example, that prosecutors are not entitled to absolute immunity when holding press

conferences, Buckley, 509 U.S. at 276–78, fabricating evidence during a preliminary investigation,

id., or deliberately destroying exculpatory evidence. Yarris v. Cnty. of Delaware, 465 F.3d 129,

137 (3d Cir. 2006).

The Complaint contains allegations that Scharfenberg made false statements about

Plaintiffs to Level and Square customers, which caused financial harm. (ECF No. 1 ¶¶ 93-95.)

Because these statements do not appear to be “intimately associated with the judicial phases of

litigation,” absolute immunity does not apply. Odd, 538 F.3d at 208.16

ii. Heisler

Plaintiffs allege that Assistant Prosecutor Heisler helped supervise the Stecz grand jury

presentment, during which Defendants presented falsified dates, failed to present exculpatory

evidence, and otherwise presented misleading information. (ECF No. 1 ¶ 79-81.) For the reasons

specified above, grand jury proceedings are core to a prosecutor’s advocacy function. See Evans,

2016 WL 2742862, at *12 (holding that prosecutors are absolutely immune from suits arising from

16 Other allegations that could possibly fall outside the absolute immunity protections are too

vague to address here. See D.W. by Renaud v. N.J. Div. of Child Protection Permanency, No. 21-

15789, 2023 WL 3626266, at *5 (D.N.J. May 24, 2023) (stating that “courts should not consider

any group pleadings that cannot reasonably be attached to an individual defendant due to improper

vagueness”). For example, while there are claims pertaining to Defendants’ investigatory acts and

Defendants’ communication with media outlets regarding Mr. Mattaccio’s 2018 arrest, none of

them allow the Court to ascertain whether they are being brought against Scharfenberg or another

Defendant. See id.; Ingris v. Borough of Caldwell, Civ. No. 2015 WL 3613499, at *5 (D.N.J. June

9, 2015) (discrediting any allegations made by a plaintiff that could be characterized as an

“impermissibl[e] vague group pleading”).

misconduct in connection with presenting a case to the grand jury). Because this is the sole

allegation regarding Heisler, all § 1983 claims against him in his individual capacity are also

dismissed without prejudice.

iii. Shadiack, Scalabrini, Malinowski

While absolute immunity is not generally extended to investigators, the Supreme Court has

held that a “grand jury witness has absolute immunity from any § 1983 claims based on the

witness’ testimony.” Rehberg v. Paulk, 566 U.S. 356, 369 (2012). Thus, Detectives Shadiack,

Scalabrini, and Malinowski are entitled to absolute immunity for any allegations pertaining to the

grand jury proceedings. That includes Detective Scalabrini’s alleged failure to present exculpatory

evidence during the grand jury proceeding in the RREM application case, (ECF No. 1 ¶¶ 55, 69),

Detectives Malinowski’s and Shadiack’s alleged testimony of falsified dates and misleading

information during the Stecz presentment, (id. ¶¶ 79–80), and Detective Shadiack’s alleged lies to

the grand jury in the Stocketta case. (id. ¶ 85.) Therefore, any § 1983 claims against the Detective

Defendants related to their testimony before the grand jury are dismissed based on absolute

immunity.

3. Statute of Limitations

Defendants argue that the statute of limitations bars Plaintiffs’ § 1983 claims because they

were filed beyond the two-year limitations period applicable to personal injury claims in New

Jersey. (See ECF No. 8-1 at 14-17; ECF No. 37-1 at 29–30); Dique v. N.J. State Police, 603 F.3d

181, 185 (3d Cir. 2010) (“A section 1983 claim is characterized as a personal-injury claim and

thus is governed by the applicable state's statute of limitations for personal-injury claims.”).

Because the statute of limitations is an affirmative defense, Plaintiffs have no obligation to

preemptively allege the timeliness of the claims in their complaint. Evans v. Gloucester Twp., 124

F. Supp. 3d 340, 349 (D.N.J. 2015) (“Defendants’ statute of limitations argument is an affirmative

defense and ‘the burden of establishing its applicability to a particular claim rests with the

defendant.’” (quoting Pension Trust Fund for Operating Eng’rs v. Mortg. Asset Securitization

Transactions, Inc., 730 F.3d 263, 271 (3d Cir. 2013))). However, “where the events alleged in the

complaint plainly lie outside the limitations period, and nothing in the complaint suggests a

possible basis for equitable tolling, dismissal is appropriate.” Evans, 2016 WL 2742863, at *6.

Plaintiffs filed their Complaint on December 12, 2023. (ECF No. 1.) However, the

allegations largely concern events that occurred in 2018. (See generally id.) Plaintiffs do not deny

that a two-year statute of limitations period applies to their claims, but instead argue that because

they were “subjected to a continual, cumulative [ ] pattern of tortious conduct of the defendants,”

their claims are subject to the continuing violation doctrine, the discovery rule, and equitable

tolling.17 (ECF No. 41 at 20.) Plaintiffs contend that the statute of limitations period only began

to accrue when they discovered “the nature of Defendant, William Scharfenberg, operating as a

competitor in business while at the same time prosecuting them, which occurred in August 2023,

and certainly no earlier than October 4, 2022, when the last of the indictments was dismissed.”

(ECF No. 41 at 20; see also ECF No. 11 at 12.) The Court will address each tolling principle

raised by Plaintiffs.

i. Continuing Violation Doctrine

The Court rejects Plaintiffs’ argument that the continuing violation doctrine applies to this

case. The doctrine provides that when an individual experiences a continual pattern of tortious

conduct, there are certain circumstances in which the statute of limitations is tolled until after the

17 State tolling principles govern § 1983 claims unless they conflict with federal law or policy.

Wilson v. Garcia, 471 U.S. 261, 269 (1985).

wrongful conduct ceases. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002);

see also Roa v. Roa, 985 A.2d 1225, 1233 (N.J. 2010) (noting New Jersey’s adoption of the

Morgan analytical framework with respect to the continuing violation doctrine). As courts in this

district have noted, “virtually all of the precedent discussing the continuing violation doctrine

involves workplace discrimination suits.” Evans, 124 F. Supp. 3d at 349 (internal quotation marks

omitted) (rejecting the applicability of the continuing violation doctrine to a § 1983 claim).

Specifically, this doctrine was developed in the context of a hostile work environment claim, which

is often characterized by repeated instances of harassment. Morgan, 536 U.S. at 115; see also

Roa, 985 A.2d at 1233 (stating that the continuing violation doctrine “allow[s] for the aggregation

of acts, each of which, in itself, might not have alerted the employee of the existence of a claim,

but which together show a pattern of discrimination,” and noting New Jersey’s adoption of the

Morgan analytical framework in employment discrimination cases).

Here, Plaintiffs allege a series of discrete acts which, by themselves, each constitute a

separate actionable claim. For example, Plaintiffs allege that during the course of the Stecz

investigation, Mr. Mattiaccio was unlawfully detained, maliciously prosecuted, and subject to

defamatory media reports. (ECF No. 1 ¶¶ 49-50, 80-86, 89.) Each of these discrete acts

“constitute[ ] an independent tort,” which cannot be aggregated to cure statute of limitations issues.

Rankin v. Smithburger, Civ. No. 12-01373, 2013 WL 3550894, at *6 (W.D. Pa. July 11, 2013)

(stating that the continuing violation doctrine does not apply to a series of allegations regarding

unlawful entry, seizure of property, and eviction given that “[e]ach act constituted an independent

tort, complete when the property had been unlawfully seized or when the home had been

unlawfully searched”); see also Evans, 124 F. Supp. 3d at 349 (“The continuing violation doctrine

does not apply to Plaintiff’s claims because her claims are based on a series of separate acts which

she knew or should have known were actionable at the time they occurred.”); Roa, 985 A.2d at

1233 (“[T]he doctrine does not permit the aggregation of discrete discriminatory acts for the

purpose of reviving an untimely act of discrimination that the victim knew or should have known

was actionable.”). Therefore, the Court finds the continuing violation doctrine inapplicable to

Plaintiffs’ claims.

ii. Discovery Rule

Plaintiffs also contend that, under New Jersey’s “discovery rule,” their claims only began

to accrue upon learning of Scharfenberg’s ownership of Beacon Homes in August 2023. (ECF

No. 41 at 19.) The discovery rule dictates that the accrual of a cause of action will be delayed until

a plaintiff knows, or after the exercise of reasonable diligence should know, that there is a basis

for an actionable claim. Rolax v. Whitman, 175 F. Supp. 2d 720, 727 (D.N.J. 2001), aff’d, 53 F.

App’x 635 (3d Cir. 2002). The effect of New Jersey’s discovery rule is “essentially the same” as

federal law relating to the accrual of causes of action. Id. That is, accrual is delayed until the

plaintiff knows or should know that she has been injured and that injury was caused by another.

Id.; see also Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010) (“Accrual is the

occurrence of damages caused by a wrongful act — when a plaintiff has a complete and present

cause of action, that is, when the plaintiff can file suit and obtain relief.” (internal quotation marks

omitted)). Therefore, the Court will address the discovery rule as applied to each of Plaintiffs’ §

1983 claims.

The Court finds that Plaintiffs’ false arrest claim is time barred. Under both federal and

New Jersey state law, “the discovery rule . . . has been held to be inapplicable to cases of false

arrest.” Rolax, 175 F. Supp. at 727. The elements of a false arrest claim are (1) that an arrest

occurred; and (2) that the arrest was made without probable cause. Brown v. Makofka, 644 F.

App’x 139, 143 (3d Cir. 2016).

Under a claim for false arrest, a plaintiff becomes aware of their injury (the arrest) and

the person responsible (the arresting officer) the moment that it happens. Id. “Therefore, no delay

in the accrual of the cause of action is necessary.” Id.; see also Rose v. Bartle, 871 F. 2d 331, 351

n.19 (3d Cir. 1989) (stating that false arrest claims accrue on the date of arrest “because the

plaintiffs would have had reason to know on those dates of the injuries which the tort

encompasses”); Deary v. Three Un-Named Police Officers, 746 F.2d 185, 194 n.9 (3d Cir. 1984)

(“It is obvious that when Deary was arrested, knowing that she had no complicity in the robbery,

her cause of action accrued: nothing further had to occur.”). Thus, Plaintiffs’ false arrest claim

began to accrue at the time of Mr. Mattiaccio’s 2018 arrest because he would have understood at

that time whether there was probable cause for his arrest. (See ECF No. 1 ¶ 86.) While Plaintiffs

argue that all claims should be tolled until August 2023—the date they purportedly learned of

Defendants’ improper motive in pursuing the criminal actions against Plaintiffs— intent or malice

is not an element of a false arrest claim. Therefore, motive is irrelevant and Plaintiffs’ claim is

dismissed as untimely.

Plaintiffs’ reputational damage claim is also time barred. “[T]o make out a due process

claim for deprivation of a liberty interest in reputation under § 1983, a plaintiff must show a stigma

to [her] reputation plus deprivation of some additional right or interest.” Hill v. Borough of

Kutzdown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original); see also Clark v. Twp. of Falls,

890 F.2d 611, 619 (3d Cir. 1989) (“[D]efamation is actionable under 42 U.S.C. § 1983 only if it

occurs in the course of or is accompanied by a change or extinguishment of a right or status

guaranteed by the state law of the Constitution.”).

While Plaintiffs largely fail to connect the Complaint’s factual allegations to specific causes

of action, the Court surmises that Plaintiffs base this aspect of their § 1983 claim on allegations

that Defendants provided information regarding the criminal investigations to media outlets in

May 2018. (See ECF No. 1 ¶ 50.) The Complaint also alleges that Scharfenberg and Malinowski

told Level and Square customers that the OCPO was investigating Mr. Mattiaccio for possible

criminal violations.18 (Id. ¶ 93.) As a result, “numerous customers cancelled their transactions

with the plaintiffs . . . and [ ] the business[ ] suffered immensely, which in turn, caused significant

financial harm to the individuals and their family.” (Id. ¶ 94.)

Based on Plaintiffs’ allegations, the Court finds that Plaintiffs knew or should have known

of the injury constituting the basis of their reputational harm claim when it occurred in 2018 or

when customers began cancelling their transactions. Plaintiffs’ sole basis for extending the statute

of limitations is related to the alleged conflict of interest involving Scharfenberg. However, a

defendant’s intent or motive is irrelevant for purposes of asserting a deprivation of liberty claim.

Lastly, Plaintiff’s malicious prosecution claim is not time barred. To plead a malicious

prosecution claim under § 1983, a plaintiff must establish: (1) the defendant initiated a criminal

proceeding; (2) the criminal proceeding ended in [the plaintiff’s] favor; (3) the defendant initiated

the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other

than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent

with the concept of seizure as a consequence of a legal proceeding. Halsey v. Pfeiffer, 750 F.3d

273, 296–97 (3d Cir. 2014).

18 While Plaintiffs do not specify when Scharfenberg and Malinowski made these comments,

the Court can infer that it was sometime in 2017 or 2018, given that the comments were made

during the course of the criminal investigations.

Given that Plaintiffs’ claim would not begin to accrue until Plaintiffs knew or had reason

to know of all of the elements of the claim, Kach, 589 F.3d at 634, the Court finds that Plaintiffs’

malicious prosecution claim would be tolled until August 2023, when Plaintiffs learned of the

alleged malice underlying the criminal prosecutions against them. (See ECF No. 41 at 1.) Malice

is defined as “ill will in the sense of spite, lack of belief by the actor himself in the propriety of the

prosecution, or its use for an extraneous improper purpose.” Robinson v. Jordan, 804 F. Supp. 2d

203, 210 n.8 (D.N.J. 2011) (quoting Morales v. Busbee, 972 F.Supp. 254, 261 (D.N.J. 1997)).

Plaintiffs have pled that they learned of the “extraneous improper purpose” at issue here—

Defendants’ alleged prosecution of Plaintiffs as a means to undercut their business—after reading

certain media reports in August 2023. (ECF No. 1 at ¶ 30.) It is on this date that Plaintiffs knew

or should have known of the injury upon which their action is based. Therefore, the Court denies

Defendants’ motion to dismiss Plaintiffs’ malicious prosecution claim based on the statute of

limitations.

iii. Equitable Tolling

The final tolling principle raised by Plaintiffs is equitable tolling. (See ECF No. 41 at 19.)

“The doctrine of equitable tolling, though similar to the discovery rule, is slightly different.”

Bustamante v. Borough of Paramus, 994 A.2d 573, 588 (N.J. Super. Ct. App. Div. 2010). “It may

be available when a plaintiff is misled . . . and as a result fails to act within the prescribed time

limit.” Id. (internal quotation marks omitted). Plaintiffs argue that Scharfenberg’s non-disclosure

of his ownership of Beacon Homes prevented them from filing within the limitation period. This

argument fails for the same reasons that the discovery rule does not apply. There is no allegation

that Plaintiffs’ lack of knowledge regarding Scharfenberg’s alleged malicious intent precluded

Plaintiffs from knowing that their arrest was unlawful (false arrest) or that the information

provided to media outlets and Level and Square customers was untrue (reputational damage).

“Contrary to plaintiffs’ protestations, it is their inaction which formed the basis for their failure to

file within the limitation period.” Freeman v. State, 788 A.2d 867, 880 (N.J. Super. Ct. App. Div.

2002). Because the Court has already determined that Plaintiffs’ malicious prosecution claim is

not time barred, it need not determine whether equitable tolling applies to such a claim.

4. Failure to State a Claim19

Based on the foregoing discussion, the only remaining federal claim is Plaintiffs’ Fourth

Amendment malicious prosecution claim against Scharfenberg, Scalabrini, Shadiack, and

Malinowski.

Scalabrini alone argues that the Complaint’s allegations are too conclusory to sustain a §

1983 claim against him individually.20 (ECF No. 8-1 at 20.) The Court agrees. The Court will

not credit impermissible group pleadings that fail to give each Defendant “fair notice of what the

19 The Complaint contains no allegations related to Billhimer’s personal involvement in the

misconduct alleged under § 1983. For claims brought under § 1983, a plaintiff must plead that

each defendant was “personally involved, through personal direction or actual knowledge and

acquiescence, in the wrongs alleged with respect to these claims.” Thomas v. Independence Twp.,

463 F.3d 285, 298 (3d Cir. 2006) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(“A defendant in a civil rights action must have personal involvement in the alleged wrongs;

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.

Allegations of participation or actual knowledge and acquiescence, however, must be made with

appropriate particularity.”)) Indeed, the Complaint’s only specific mention of Billhimer is that he

served as the Ocean County Prosecutor beginning in September 2018. (See ECF No. 1 ¶ 7.) This

allegation alone is insufficient to state a claim against Billhimer. Thus, all § 1983 claims against

Billhimer are dismissed without prejudice.

20 The Remaining Moving Defendants do not raise any arguments regarding the merits of

Plaintiffs’ § 1983 claims against Scharfenberg, Shadiack, and Malinowski. The Court is under no

obligation to raise legal arguments that these Defendants have overlooked or ignored. Millner v.

Bayada Nurses, Inc., Civ. No. 05-3164, 2006 WL 231993, at *2 (D.N.J. Jan. 30, 2016) (citing

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 441 (1990)).

claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. There is only a single

allegation specifically referencing Scalabrini by name, which states “Dave Scalabrini . . .

cooperated with [ ] Scharfenberg, and gave testimony at The Application Case Grand Jury

Presentment.” (ECF No. 1 ¶ 55.) This allegation does not suggest that Scalabrini’s “cooperation”

with Scharfenberg was anything more than routine compliance with a subpoena to testify before a

grand jury. Even if the Court were to read this statement in concert with other allegations to infer

that Scalabrini lied during the grand jury presentment, such testimony is, as previously established,

subject to absolute immunity. Rehberg, 566 U.S. at 369 (holding that a “grand jury witness has

absolute immunity from any § 1983 claims based on the witness’ testimony”). Thus, the Court

dismisses without prejudice Plaintiffs’ malicious prosecution claim against Scalabrini. 21

B. Declaratory Judgment Act (Count II)

Plaintiffs bring Count II under 28 U.S.C. § 2201, the Declaratory Judgment Act, asking the

Court for an “order declaring that defendants have violated [P]laintiffs’ [constitutional] rights.”

(See ECF No. 1 ¶¶ 112–116.) The Declaratory Judgment Act states, “[i]n a case of actual

controversy within its jurisdiction . . . any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other legal relations of any interested party

seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).

Declaratory judgement “is inappropriate solely to adjudicate past conduct.” Gruntal & Co.

v. Steinberg, 854 F. Supp. 324, 332 (D.N.J.), aff’d, 46 F.3d 1116 (3d Cir. 1994). Plaintiffs’

Complaint centers on past harm, and they have failed to demonstrate the probability of a “feared,

21 In his Motion to Dismiss, Scalabrini argues that qualified immunity and res judicata also

bar Plaintiffs’ claims. (See ECF No. 8-1.) Because the Court dismisses the claims against

Scalabrini on other grounds, it will not address those arguments here.

future event . . . ‘of sufficient immediacy and reality to warrant the issue of a declaratory

judgment.’” (quoting Salvation Army v. Dep’t of Cmty Aff., 919 F.2d 183, 192 (3d Cir. 1990)). Nor

is “declaratory judgment meant simply to proclaim that one party is liable to another.” Corliss v.

O'Brien, 200 F. App’x 80, 84 (3d Cir. 2006).

The Court also notes that the declaration sought by Plaintiffs is duplicative of Plaintiffs’ §

1983 claims. Both require a finding that Defendants subjected Plaintiffs to the “deprivation of . . .

rights, privileges and immunities secured by the Constitution and laws.” (See ECF No. 1 ¶¶ 106,

116.) If Plaintiffs prevail on their § 1983 claims, “then an actual judgment, rather than a mere

declaration, would be entered,” entitling Plaintiffs to relief. Cf. Maniscalco v. Brother Int’l Corp.,

627 F. Supp. 2d 494, 504–05 (D.N.J. 2009) (dismissing the plaintiffs’ New Jersey Consumer Fraud

Act claim as duplicative of their declaratory judgment claim). Therefore, “unless Plaintiffs

identify a basis in [§ 1983] whereby the Court must grant declaratory relief as a prerequisite for a

finding of liability, the Court need not issue a separate declaratory judgment on the merits of the

action.” Id. at 505. Therefore, Plaintiffs’ declaratory judgment claim is dismissed.

C. State Law Claims22

In addition to Plaintiffs’ federal claims, Plaintiffs bring four state law claims: (1) tortious

interference with contractual relations against Scharfenberg and Beacon Homes (Count III); (2)

22 For reasons similar to those set forth above regarding Plaintiffs’ § 1983 claims, Plaintiffs

fail to allege sufficient facts to support the state law claims that they assert against Billhimer.

Therefore, the Court dismisses without prejudice Count V (defamation) and VI (civil conspiracy)

against Billhimer.

Regarding Coronato, the allegation that he was aware of and permitted Scharfenberg’s

outside employment with Beacon Homes does not support a defamation or civil conspiracy claim

as there are no facts suggesting that Coronato’s approval of Scharfenberg’s outside employment

was unlawful in any way. Plaintiffs themselves cite to a statute that explicitly gives Coronato, as

Ocean County Prosecutor, the discretion to determine whether Scharfenberg’s outside

employment was proper. N.J. Stat. Ann. § 2A:158-15.1b (“[A]n assistant prosecutor may engage

tortious interference with prospective economic advantage against Scharfenberg and Beacon

Homes (Count IV); (3) defamation against all Defendants (Count V); and (4) civil conspiracy

against all Defendants (Count VI).

1. NJTCA Notice Requirement

Defendants argue that Plaintiffs have failed to adhere to the New Jersey Tort Claims Act’s

(NJTCA) notice requirements. (See ECF Nos. 50, 52.) The NJTCA provides that, prior to bringing

a tort claim against a public official or entity, a plaintiff must give notice to the public entity within

90 days of the accrual of the cause of action. See N.J. Stat. Ann. § 59:8-8. Otherwise, the plaintiff

is “forever barred from recovering against a public entity or public employee[.]” N.J. Stat. Ann. §

59:8-8(a). This “notice requirement is a ‘jurisdictional precondition23 to filing suit,’ . . . and suits

that do not comply with the notice provision are ‘forever barred from recovering against a public

entity or public employee.’” Helms v. Miller, Civ. No. 22-01325, 2024 WL 4972710, at *5 (D.N.J.

Dec. 3, 2024) (quoting Ptaszynski v. Uwaneme, 853 A.2d 288, 294 (N.J. Super. Ct. App. Div. 2004);

N.J. Stat. Ann. § 59:8-8). Furthermore, Plaintiffs bear the burden of proving that the claim was

filed with the proper public entity. Rolax, 175 F. Supp. 2d at 729 (granting the defendants’ motion

to dismiss for failure to state a claim).

in limited outside employment or provide services as an independent contractor if . . . the county

prosecutor has deemed the employment or services as not inconsistent with the duties of the office

of assistant prosecutor[.]”). It is possible that the basis for Coronato’s approval of Scharfenberg’s

outside employment gives rise to liability. However, Plaintiffs fail to allege any facts to support

such a contention.

23 Because the NJTCA’s notice requirement is jurisdictional, the Court may consider facts

outside of the Complaint in assessing Plaintiffs’ compliance with that requirement under Rule

12(b)(1). See Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006).

In a supplemental filing requested by the Court, Plaintiffs attach an Initial Notice of Claim

for Damages Against the State of New Jersey. (ECF No. 53.) The Court finds that the attached

notice fulfills the NJTCA’s notice requirement with respect to the events surrounding the Stecz

case. The notice provides the information required by the NJTCA, N.J. Stat. Ann. § 59:8-4,

including Mr. Mattiaccio’s name and address; the date, place, and other circumstances of the

occurrence giving rise to the claim; a description of the injury, damage or loss incurred; the name

of the public entity or employee causing the injury, damage or loss, if known; and the amount

claimed. The notice states that on May 25, 2018, Mr. Mattiaccio “was arrested by the Ocean

County Prosecutors office and Point Pleasant Boro Police Department based upon a false claim

made by a third party, Ms. Elizabeth Stecz.” (Id. at 3.) The notice names the OCPO, Point Pleasant

Boro Police, and Shadiack and alleges illegal arrest, improper investigation of the claim, illegal

detention, violation of constitutional rights, defamation of character, slander, and financial

hardship. (Id. at 3.) Additionally, Plaintiffs attach a certified mail receipt indicating that the notice

was delivered to the New Jersey Department of Treasury’s Tort and Contract Unit on August 2,

2018, which was within 90 days of Mr. Mattiaccio’s arrest. (Id. at 2.)

However, Plaintiffs do not plead any facts regarding their compliance with the NJTCA’s

notice requirements with respect to the RREM application and Stocketta cases. Instead, they

encourage the Court to accept their notice of claim relating to the Stecz case as applicable to the

other two cases under the doctrine of substantial compliance. (ECF No. 49 at 4.) The doctrine of

substantial compliance allows courts to avoid barring legitimate claims when “notice has been

given in a way, which though technically defective, substantially satisfies the purposes for which

notices of claims are required.” Lameiro v. W. New York Bd. of Ed., 348 A.2d 377, 379 (N.J. Super.

Ct. 1975). The purpose of notice of claims is to allow state agency review of the claims in order

to facilitate settlement (for meritorious claims) or, alternatively, conduct an adequate investigation

and defense. Henderson v. Herman, 862 A.2d 1217, 1223 (N.J. Super. Ct. App. Div. 2004)

(“N.J.S.A. 59:8–4 is designed to provide the public entity with sufficient information to enable it

promptly to evaluate its liability and potential exposure and, if it chooses, to correct a defective

condition and also to engage in settlement negotiations prior to the commencement of suit.”

(internal quotation marks omitted)).

Plaintiffs plead no facts to suggest that Defendants were provided with any kind of notice—

deficient or otherwise—that would allow a state agency to “evaluate its liability” with respect to

the RREM application case or the Stocketta case. Id. Therefore, Plaintiffs’ state law claims related

to the RREM and Stocketta case are dismissed without prejudice. Plaintiff’s claims against

Scharfenberg for tortious interference with contractional relations (Count III) and tortious

interference with prospective economic advantage (Count IV) are also dismissed for the same

reason. Plaintiffs bear the burden of demonstrating compliance with the NJTCA’s notice

requirements at the motion to dismiss stage, a burden they have failed to meet. Rolax, 175 F.

Supp. 2d at 729.

2. Immunity Under the NJTCA

The Remaining Moving Defendants24 also argue that the defamation and conspiracy claims

(Counts V and VI) are barred under several immunity provisions of the NJTCA. Because the Court

finds that Plaintiffs have met the NJTCA notice requirements regarding the Stecz case only, the

Court’s NJTCA’s immunity assessment is limited to allegations arising from that case. The NJTCA

24 Scalabrini argues that because there are no allegations pertaining to his involvement in the

Stecz case, the Court should dismiss the state law claims against him. (See ECF No. 50 at 3.) The

Court agrees and grants Scalabrini’s Motion to Dismiss with respect to all state law claims without

prejudice.

“was enacted with the purpose of limiting a public entity’s or a public employee’s liability in

certain situations.” R.K. v. Y.A.L.E. Schools, Inc., 621 F. Supp. 2d 188, 199 (D.N.J. 2008) (quoting

Davis v. Twp. of Paulsboro, 371 F. Supp. 2d 611, 617 (D.N.J. 2005)). These situations, the

Remaining Moving Defendants argue, include those in which a public employee “acts in good

faith in the execution or enforcement of any law,” N.J. Stat. Ann. 59:3-3, or causes injury “by his

misrepresentation.” N.J. Stat. Ann. § 59:3-10. The immunity provisions that the Remaining

Moving Defendants cite, however, do not apply if the public employee acted “outside the scope of

his employment” or if his conduct “constituted a crime, actual fraud, actual malice or willful

misconduct.” N.J. Stat. Ann. § 59:3-14.

In a defamation action against public officers, New Jersey courts have held that immunity

is lost when “defamation is made with actual malice in the New York Times v. Sullivan sense: ‘with

knowledge that it was false or with reckless disregard of whether it was false or not.’” Burke v.

Deiner, 479 A.2d 393, 399 (N.J. 1984) (emphasis added) (quoting New York Times Co. v. Sullivan,

376 U.S. 254, 279–80 (1964)). Here, Plaintiffs allege that Scharfenberg and Malinowski made

false statements to Level and Square customers regarding the ongoing investigation into Plaintiffs,

which resulted in a loss of business. (ECF No. 1 ¶ 93.)25

The Remaining Moving Defendants argue that any information released by the OCPO was

relevant to the charges brought against Plaintiffs; therefore, Defendants were “acting well within

the scope of their official duties” and are entitled to qualified immunity. (ECF 37-1 at 41.)

Defendants cite to Brayshaw v. Gelber, 556 A.2d 788 (N.J. Super. Ct. App. Div. 1989), in support

25 As previously stated, the Court cannot ascertain which Defendants allegedly

communicated with media outlets because Plaintiffs attribute this alleged conduct to all

Defendants. (ECF No. 1 ¶ 50.) Accordingly, the Court will not consider this allegation for

purposes of assessing NJTCA immunity. See supra note 16.

of this argument. In that case, the court reversed the trial court’s denial of summary judgment

finding that defendant, a Deputy Attorney General for the State of New Jersey, was acting within

the scope of his duties in communicating with the press with respect to criminal charges entered

against the plaintiff. Brayshaw, 232 N.J. Super. at 794–95. The court in Brayshaw held that the

plaintiff could not defeat immunity by simply alleging that the defendant’s communications with

the press were motivated by subjective “bad faith” or “malice.” Id. at 795. Thus, Defendants

argue that qualified immunity under the NJTCA can “only be overcome by clear and convincing

evidence that the employee knew the information conveyed was false or recklessly disregarded

whether or not it was false.” (ECF 37-1 at 41 (citing Brayshaw, 232 N.J. Super. at 795–96).)

At this stage, the “clear and convincing evidence” standard is not the standard by which

this Court must assess the sufficiency of the Complaint. Wilson, 57 F.4th at 140. The Court must

accept Plaintiffs’ allegations as true and assess whether those allegations allow the Court to draw

the reasonable inference that Defendants are liable for the misconduct alleged. Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); see also Clark, 55 F.4th at 178. Construing the

allegations in a light most favorable to Plaintiffs, the Court finds that Plaintiffs have adequately

alleged that Defendants acted maliciously in their alleged misrepresentations to Level and Square

customers. See Demetro v. Nat’l Ass’n of Bunco Investigations, Civ. No. 14-6521, 2019 WL

2612687, at *10 (D.N.J. June 25, 2019) (stating that if the defamatory statement “were, as alleged,

a false accusation of criminal conduct, it would be considered defamatory as a matter of law”

(collecting cases)). Indeed, the Court’s assessment of immunity in this case is best left to summary

judgment after the parties have had the opportunity to develop the record further. See R.K., 621 F.

Supp. 2d at 199 (noting that “New Jersey courts have recognized [that issues of immunity] may be

decided at the summary judgment stage more easily than at the motion to dismiss stage”); see also

Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (“[I]t is generally unwise to venture

into a qualified immunity analysis at the pleading stage as it is necessary to develop the factual

record in the vast majority of cases.”); Independence Twp., 463 F.3d at 299 (reasoning that in a

“complaint lacking in detailed factual allegations,” it is difficult for the District Court to “engage

in a meaningful fact-specific qualified immunity analysis”).

However, the Court agrees with the Remaining Moving Defendants that the claims against

the OCPO should be dismissed given that the NJTCA dictates that a “public entity is not liable for

the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or

willful misconduct.” N.J. Stat. Ann. § 59:2-10. Even if the OCPO’s employees engaged in willful

misconduct, the OCPO cannot be held vicariously liable. R.K., 621 F. Supp. 2d at 200 (holding

that a public entity cannot be liable for acts of public employee constituting crime, actual fraud,

actual malice, or willful misconduct).

Therefore, with the exception of the OCPO and Scalabrini, the defamation claim and civil

conspiracy claim (related to defamation) against Defendants Scharfenberg, Heisler, Shadiack, and

Malinowski shall proceed, but only as they relate to statements made to Level and Square

customers as part of the Stecz investigation and prosecution. As stated above, any allegations

pertaining to the RREM application case and Stocketta case are dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, and other good cause shown, Scalabrini’s Motion to Dismiss

(ECF No, 8) is GRANTED, and the Remaining Moving Defendants’ Motion to Dismiss (ECF No,

37) is GRANTED in part and DENIED in part.

An appropriate Order follows.

( ‘ih

Dated: July 8, 2025 WM) NMS MEW

GEQRGEETTEACASTNER

UNITED STATES DISTRICT JUDGE

37