KIDWAI

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

YURSIL KIDWAI,

Plaintiff, Civil Action No.: 23-23206 (ES) (SDA)

v. OPINION

HUDSON COUNTY PROSECUTOR’S

OFFICE, et al.,

Defendants.

SALAS, DISTRICT JUDGE

Before the Court is Defendants Hudson County Prosecutor’s Office (“HCPO”), Esther

Suarez, Jane Weiner, Ashley Rubel, Leslie Murphy, and Julia Medina’s (collectively the

“Prosecutor’s Office Defendants”) motion to dismiss the Complaint. (D.E. No. 27 (“Motion”);

D.E. No. 27-1 (“Mov. Br.”)). The Court has carefully considered the parties’ submissions, as well

as the balance of the record, and decides the matter without oral argument. See Fed. R. Civ. P.

78(b); L. Civ. R. 78.1(b). For the following reasons, the Prosecutor’s Office Defendants’ Motion

is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In this putative class action, Plaintiff Yursil Kidwai (“Plaintiff”) alleges that the

Prosecutor’s Office Defendants, along with Defendants Ronald Edwards, Hudson County

Department of Corrections & Rehabilitation (“HCDC&R”), Hudson County Correctional Facility

(“HCCF”), and John Does 1–10 (collectively, “Defendants”), violated his constitutional rights “by

secretly monitoring, reviewing, digesting, sharing and otherwise using the substance of [his]

privileged attorney-client telephone calls to investigate and prosecute the . . . criminal case [against

him].” (D.E. No. 1 (“Compl.”) ¶ 1). More specifically, Plaintiff alleges that Defendants

established a practice whereby HCCF officials recorded inmate-attorney calls and shared them

with the HCPO, who then utilized them in connection with the inmates’ criminal proceedings. (Id.

¶¶ 12–13 & 29–41).

Plaintiff “was incarcerated at HCCF after having been charged with a criminal offense” in

or around May 2020. (Id. ¶ 26). Plaintiff alleges that, during his incarceration, HCCF monitored

and recorded his legal telephone calls with his attorneys and, pursuant to the practice or custom of

HCCF and HCPO, then provided those recordings to HCPO and the prosecutors responsible for

his case. (Id. ¶¶ 29–30). For instance, Plaintiff alleges that HCCF shared certain of those

privileged conversations with Defendant Rubel—a detective with the HCPO—who then prepared

a written summary that she subsequently shared with Defendants Weiner (then an assistant

prosecutor at the HCPO) and Murphy (a detective sergeant with the HCPO and Defendant’s

Rubel’s supervisor). (Id. ¶¶ 7–8, 10, 30–33). Plaintiff also contends that Julia Medina, another

HCPO detective, used that information as the basis for a certification she submitted in support of

related civil forfeiture proceedings against him. (Id. ¶¶ 9 & 42). Defendants allegedly engaged in

those activities in secret and withheld their conduct from Plaintiff’s attorney, who only discovered

it when the HCPO inadvertently produced in discovery copies of the summary that Defendant

Rubel previously sent to Defendants Weiner and Murphy. (Id. ¶¶ 35–36). Finally, Plaintiff also

alleges that Defendants Suarez (on behalf of the HCPO) and Edwards (on behalf of both the

HCDC&R and the HCCF) were responsible for setting the policy or practice of secretly

recording/sharing/utilizing inmate-attorney conversations at their respective organizations. (Id. ¶¶

43–44).

Based on those allegations, Plaintiff filed a Complaint asserting three causes of action.

(See generally id.). First, Plaintiff seeks relief against Defendants Suarez, Weiner, Rubel, Murphy,

Medina, and Edwards pursuant to 42 U.S.C. § 1983 in connection with their alleged violation of

his rights under the Fourth, Sixth, and Fourteenth Amendments to the Constitution. (Id. ¶¶ 55–

62). Second, Plaintiff seeks 1983 relief against Defendants HCPO, HCCF, and HCDC&R, (id. ¶¶

63–69), alleging that those entities’ “failure to provide adequate training caused the deprivation of

Plaintiff’s and class members’ constitutional rights by the individual Defendants,” (id. ¶ 68).

Third, Plaintiff alleges that Defendants Suarez, Weiner, Rubel, Murphy, Medina, and Edwards

“conspired, while acting under color of state law, to deprive Plaintiff . . . of the equal protection of

the laws, or of equal privileges and immunities under the laws, in violation of 42 U.S.C. § 1985.”

(Id. ¶ 71). Plaintiff clarifies that he brings his claims against Defendants Suarez, Weiner, Rubel,

Murphy, Medina, and Edwards in both their “individual and official” capacities. (Id. at 1).

On July 22, 2024, the Prosecutor’s Office Defendants moved to dismiss Plaintiff’s claims

against them pursuant to Federal Rule of Civil Procedure 12(b)(6). (See generally Motion). The

Motion is now fully briefed and ripe for resolution. (See D.E. No. 27-1 (“Mov. Br.”), D.E. No. 29

(“Opp. Br.”) & D.E. No. 30 (“Reply Br.”)). The remaining Defendants, HCCF, HCDC&R, and

Ronald Edwards, filed answers rather than seeking dismissal of Plaintiff’s claims. (See generally

D.E. Nos. 13 & 14).

II. LEGAL STANDARD

Under Rule 12(b)(6), the Court may dismiss a complaint, in whole or in part, for failure to

state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

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

alleged.” Id. On a Rule 12(b)(6) motion, the Court accepts “all well-pleaded allegations as true

and draw[s] all reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v.

Altisource Asset Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018). However, “threadbare recitals

of the elements of a cause of action, legal conclusions, and conclusory statements” are all

disregarded. Id. at 878–79 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir.

2012)). The burden is on the moving party to show that the plaintiff has not stated a facially

plausible cause of action. See Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016).

In evaluating a plaintiff’s claims, the Court considers the allegations in the complaint, as

well as the documents attached to and specifically relied upon or incorporated therein. See Sentinel

Tr. Co. v. Universal Bonding Ins. Co., 316 F.3d 213, 216 (3d Cir. 2003); In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (“‘[A] document integral to or explicitly

relied upon in the complaint may be considered without converting the motion [to dismiss] into

one for summary judgment.’” (quoting Shaw v. Digit. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir.

1996) (internal quotation marks omitted))). The Court may also consider “matters of public record,

as well as undisputedly authentic documents if the complainant’s claims are based upon these

documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton

Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (noting that, pursuant to Rule 12(b)(6), the Court

“may consider documents that are attached to or submitted with the complaint, and any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice, matters of public

record, orders, [and] items appearing in the record of the case.’” (first citing Pryor v. Nat’l

Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002); and then quoting 5B Charles A.

Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004))).

III. DISCUSSION

In seeking dismissal, the Prosecutor’s Office Defendants argue: (i) the Eleventh

Amendment bars Plaintiff’s claims against the HCPO (Mov. Br. at 8–14); (ii) Defendants Suarez

and Weiner are entitled to absolute prosecutorial immunity (id. at 19–24); (iii) Plaintiff has not

alleged facts sufficient to support a conspiracy claim under 42 U.S.C. § 1985(3) (id. at 27–29);

and (iv) Plaintiff’s Section 1983 claims against the Prosecutor’s Office Defendants fail on multiple

grounds (id. ¶¶ 14–16, 16–18, 24–27 & 30–35). The Court will address these points in turn.

A. The Eleventh Amendment Bars Plaintiff’s Claims Against the HCPO

The Court first examines the Prosecutor’s Office Defendants’ arguments that the Eleventh

Amendment to the United States Constitution precludes Plaintiff’s claims against the HCPO. (Id.

at 8–14).

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. The reach of the Eleventh Amendment has been extended to “suits by in-state

plaintiffs, thus barring all private suits against non-consenting States in federal court.” Lombardo

v. Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008) (citing Hans v. Louisiana, 134 U.S.

1 (1890)). The Eleventh Amendment precludes claims against the state for damages, as well as

claims for injunctive or declaratory relief, and generally extends to bar suits against state officers

acting in their official capacity. See Cory v. White, 457 U.S. 85, 90–91 (1982); Pa. Fed’n of

Sportsmen Clubs v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). While there are certain exceptions to

Eleventh Amendment immunity, nothing in either the Complaint or the parties’ briefing suggests

that they might apply in this case. See Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F.

App’x 247, 252 (3d Cir. 2005) (identifying (i) waiver by the state, (ii) congressional abrogation,

and (iii) suits against individual state officers for prospective injunctive and declaratory relief to

end an ongoing violation of federal law as the “three primary exceptions” to Eleventh Amendment

immunity).

The United States Court of Appeals for the Third Circuit has acknowledged that county

prosecutors’ offices are considered arms of the State of New Jersey when they “‘engage in classic

law enforcement and investigative functions.’” Est. of Lagano v. Bergen Cnty. Prosecutor's Off.,

769 F.3d 850, 855 (3d Cir. 2014) (quoting Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.1996)).

“When county prosecutors perform administrative functions ‘unrelated to the duties involved in

criminal prosecution,’ however, they act as county officials.” Id. (quoting Coleman, 87 F.3d at

1505–06). Without addressing the propriety of the HCPO’s conduct, it appears clear that the office

was exercising “law enforcement and investigative functions” in connection with the conduct

Plaintiff alleges in his Complaint, such that it must be considered an arm of the state for Eleventh

Amendment purposes. Indeed, Plaintiff concedes this point. (Opp. Br. at 4 (“Although HCPO

itself must be dismissed as a defendant . . .”); Id. at 6 n.4 (“[Plaintiff] is persuaded by the cases

cited by Defendants and agrees that HCPO is immune from suit and should be dismissed as a

matter of law.”)). As the Eleventh Amendment therefore bars Plaintiff’s claims against the HCPO,

the court will dismiss those claims with prejudice.

B. Absolute Prosecutorial Immunity

The Court next turns to the Prosecutor’s Office Defendants’ argument that Defendants

Suarez and Weiner are entitled to absolute prosecutorial immunity against Plaintiff’s Section 1983

claims. (Mov. Br. at 19–24). When determining whether absolute prosecutorial immunity applies,

the Third Circuit employs a “functional test [that] separates advocacy from everything else,

entitling a prosecutor to absolute immunity only for work ‘intimately associated with the judicial

phase of the criminal process.’” Fogle v. Sokol, 957 F.3d 148, 159–160 (3d Cir. 2020) (quoting

Burns v. Reed, 500 U.S. 478, 479 (1991)). “By contrast, a prosecutor's ‘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.’” Id. at 160 (quoting Buckley v. Fitzsimmons,

509 U.S. 259, 273 (1993)); Roberts v. Lau, 90 F.4th 618, 620 (3d Cir.), cert. denied sub nom. Baer

v. Roberts, 145 S. Ct. 414 (2024) (“Thus, prosecutors are not entitled to absolute immunity when

they ‘perform[ ] the investigative functions normally performed by a detective or police officer.’”

(quoting Buckley, 509 U.S. at 273)). The Third Circuit has refrained from applying bright-line

rules or “categorial reasoning” to this process, as “[d]etermining the precise function that a

prosecutor [ ] perform[s]” requires “a fact specific analysis.” Fogle, 957 F.3d at 160; Weimer v.

Cnty. of Fayette, Pennsylvania, 972 F.3d 177, 187 (3d Cir. 2020). The Court’s inquiry, therefore,

“‘focuses on the unique facts of each case and requires careful dissection of the prosecutor’s

actions.’” Fogle, 957 F.3d at 160 (quoting Odd v. Malone, 538 F.3d 202, 210 (2008)).

That “careful dissection” involves a two-step process:

First, we “ascertain just what conduct forms the basis for the

plaintiff's cause of action.” Then, we “determine what function

(prosecutorial, administrative, investigative, or something else

entirely) that act served,” to determine whether the [p]rosecutors

have carried their “burden of showing that such immunity is justified

for the function in question[.]” Thus, while we tend to discuss

prosecutorial immunity based on alleged acts, our ultimate analysis

is whether a defendant has established absolute prosecutorial

immunity from a given claim.

Id. at 161 (internal citations omitted).

A review of Third Circuit case law demonstrates these principles in action. For instance,

in Fogle, the Court of Appeals found that certain alleged prosecutorial misdeeds, such as

withholding exculpatory evidence, filing a criminal complaint without probable cause, and

committing perjury both before and during trial, were “‘intimately associated with the judicial

phase of the criminal process’” and therefore subject to absolute immunity. Id. at 164 (citation

omitted). Conversely, where the prosecutors “not only solicited false statements from jailhouse

informants, but deliberately encouraged the State Troopers to do the same,” the Fogle court found

that immunity did not apply, as the prosecutors “were functioning not as advocates, but as

investigators seeking to generate evidence in support of a prosecution.” Id. In Roberts, the Court

of Appeals found that a prosecutor who “affirmatively searched for and approached a new witness

to establish motive” was not entitled to immunity at the pleadings stage, as that function involved

“quintessential ‘police investigative work.’” 90 F.4th 620; see also id. at 623 (“[Defendant]

allegedly embarked on a post-charge search for a new witness to plug a hole in the prosecution’s

case. Thus, [he] is not entitled to absolute immunity at the motion-to-dismiss stage because his

alleged conduct served an investigative function.”).

“A prosecutor bears the ‘heavy burden’ of establishing entitlement to absolute immunity.”

Odd, 538 F.3d at 207 (quoting Light v. Haws, 472 F.3d 74, 80–81 (3d Cir. 2007)). Indeed, “the

onus is on the prosecutor to demonstrate ‘that absolute immunity should attach to each act [s]he

allegedly committed that gave rise to a cause of action.’” Fogle, 957 F.3d at 160 (quoting Light,

472 F.3d at 80). “‘[T]hat burden is uniquely heavy’ at the motion-to-dismiss stage ‘because ... it

is the [prosecutor's] conduct as alleged in the complaint that is scrutinized.’” Roberts, 90 F.4th

631 (quotation modified) (quoting Fogle, 957 F.3d at 160). “Meaning to earn the protections of

absolute immunity, a defendant must show that the conduct triggering absolute immunity ‘clearly

appear[s] on the face of the complaint.’” Fogle, 957 F.3d at 161 (quoting Wilson v. Rackmill, 878

F.2d 772, 776 (3d Cir. 1989)).

Against this backdrop, the Court will separately consider Plaintiff’s factual allegations

against Defendants Weiner and Suarez. Beginning with Defendant Weiner, Plaintiff alleges that

she “was aware of, directed, supervised, approved and/or otherwise participated in” Defendant

Rubel’s actions. (Compl. ¶ 32). As discussed herein, those actions included “review[ing] and

digest[ing] Plaintiff’s privileged legal telephone calls, and shar[ing] a written summary of the

privileged conversations with Defendants Weiner and Murphy.” (Id. ¶ 31). Taking those

allegations as true, the Court finds that Defendant Weiner’s conduct is quintessential investigation

and thus not subject to absolute immunity at the pleadings phase.

As to Defendant Suarez, Plaintiff contends that she “is and was responsible for setting the

policies, customs, and practices of HCPO, including the policy, custom, or practice at issue here,

specifically, the secret monitoring and recording of inmate-attorney communications and use of

them in connection with the prosecution of those inmates.” (Compl. ¶ 43). Plaintiff further alleges

that “by virtue of her position,” Defendant Suarez “knew of and authorized” the unconstitutional

conduct at issue in the case “and/or . . . the unconstitutional practice, custom and/or policy pursuant

to which [that conduct] took place.” (Id. ¶ 45). Those allegations involve conduct that is

administrative (e.g., setting policies, customs, and practices for the HCPO) or investigative (e.g.,

authorizing the process by which the HCPO obtained recordings of Plaintiff’s attorney/client

communications and summarized them for potential use in future prosecutorial efforts) in nature.

Thus, the Court finds that Defendants Weiner and Suarez have not established that absolute

prosecutorial immunity bars Plaintiff’s claims against them at this stage of the case.

The Court will therefore deny the Prosecutor’s Office Defendants’ motion to the extent

they seek dismissal on absolute prosecutorial immunity grounds. That denial is without prejudice

to their ability to assert an absolute immunity defense at a later stage, if appropriate, after obtaining

additional information in discovery.

C. Conspiracy Claim Pursuant to 42 U.S.C. § 1985

The Court next considers Plaintiff’s claim that the individual defendants “conspired, while

acting under color of state law, to deprive Plaintiff . . . of the equal protection of the laws, or of

equal privileges and immunities under the laws, in violation of 42 U.S.C. § 1985.” (Compl. ¶ 71).

While Section 1985 has three subparts, Plaintiff’s claim plainly falls under subsection 3.1 The

Prosecutor’s Office Defendants argue that Plaintiff has failed to plead a viable claim under that

statute. (Mov. Br. at 27–29). This Court agrees.

When discussing claims under 42 U.S.C. § 1985(3), the Third Circuit wrote:

Section 1985(3) permits an action to be brought by one 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.” . .

. [T]he Supreme Court has made clear what a plaintiff must allege

to state a claim under § 1985(3): “(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 injured in his

person or property or deprived of any right or privilege of a citizen

of the United States.”

1 Subsection 1, titled “Preventing officer from performing duties,” and Subsection 2, titled “Obstructing

justice; intimidating party, witness, or juror” are facially inapplicable here. Indeed, when addressing Plaintiff’s

Section 1985 claim in their briefing, both sides focused exclusively on Subsection 3. (See Mov. Br. at 27–29; Opp.

Br. at 17–19).

Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd. of Carpenters

& Joiners v. Scott, 463 U.S. 825, 828–29 (1983)). Elaborating on well-established Supreme Court

precedent, the Third Circuit noted:

Despite its application to private conspiracies, § 1985(3) was not

intended to provide a federal remedy for “all tortious, conspiratorial

interferences with the rights of others,” or to be a “general federal

tort law.” The [Supreme] Court emphasized that because § 1985(3)

requires the “intent to deprive of equal protection, or equal

privileges and immunities,” a claimant must allege “some racial, or

perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action” in order to state a claim.

Id. at 135 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (internal citations omitted)).

The “class-based invidiously discriminatory animus” necessary to support a Section 1985(3) claim

has “two distinct aspects . . . the first is defined by form, and the second by function. Thus, a

plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an

identifiable class and that the discrimination against the identifiable class was invidious.” Id.

(citing Aulson v. Blanchard, 83 F.3d 1, 4–5 (1st Cir. 1996)).

The Court will assume, without deciding, and for the purposes of this motion only, that

Plaintiff has alleged facts sufficient to establish (i) a conspiratorial agreement; (ii) acts in

furtherance of the conspiracy; and (iii) damages flowing from that conduct. Plaintiff’s Section

1985 claim nevertheless fails because he has not pled any facts suggesting that Defendants’ actions

were “motivated by racial or class-based discriminatory animus designed to deprive, directly or

indirectly, any person or class of persons to the equal protection of the laws.” Phifer v. Sevenson

Env’t Servs., Inc., 619 F. App’x 153, 155 (3d Cir. 2015). Nor can the Court reasonably infer such

an animus from Plaintiff’s existing allegations. Indeed, Plaintiff appears to concede this point,

having neglected to address it in his briefing. (See generally Opp. Br.). The Court will therefore

dismiss Plaintiff’s conspiracy claim without prejudice and afford him a chance to replead that

cause of action. Moreover, the Court notes that, while only the Prosecutor’s Office Defendants

have moved for dismissal, the problems inherent in Plaintiff’s Section 1985 claim are not

defendant-specific. The Court will therefore dismiss that claim against all defendants. Bintliff-

Ritchie v. Am. Reinsurance Co., 285 F. App'x 940, 943 (3d Cir. 2008) (“The District Court has the

power to dismiss claims sua sponte under Rule 12(b)(6).”).

The Court stresses that, should Plaintiff attempt to replead his conspiracy claim, he must

remain mindful that not just any discriminatory “animus” will support a claim under 42 U.S.C. §

1985(3). Rather, it must be one that Congress “intended” the statute to reach; specifically “a type

of discrimination so ‘invidious’ as to qualify for § 1985(3) protection.” Farber, 440 F.3d at 135

& 138. The Third Circuit has held, for instance, that race-based animus is actionable under that

statute, (id.), while a “discriminatory animus directed toward [a person’s] political affiliation” is

not. Id. at 143. If Plaintiff does not plead facts demonstrating that Defendants’ alleged conspiracy

was driven by an “invidious” racial or class-based discriminatory animus, any amended Section

1985(3) claim will fail, and the Court will be inclined to find that further attempts at amendment

would be futile.

D. Rule 12(b)(6) Challenges to Plaintiff’s Section 1983 Claims

i. Plaintiff’s Section 1983 Claims Are Not Time-Barred

While the Prosecutor’s Office Defendants argue that Plaintiff’s Section 1983 claims fail on

multiple grounds, the Court will begin with their threshold argument that those claims are barred

under the relevant statute of limitations. (Mov. Br. at 34–35). “A [S]ection 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.” Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d

Cir. 2010). New Jersey, where Plaintiff’s claims allegedly arose, “mandates a two-year statute of

limitations for personal-injury torts.” Id. Plaintiff’s Section 1983 claims are therefore subject to

a two-year limitations period.

While “[f]ederal law . . . governs the issue of what constitutes [claim] accrual[,]” id. (citing

Wallace v. Kato, 549 U.S. 384, 388 (2007)), and thus dictates when a limitations period begins to

run, “[s]tate law, unless inconsistent with federal law . . . governs the concomitant issue of whether

a limitations period should be tolled.” Id. “Under New Jersey law, a statute of limitations can be

tolled based upon equitable principles, including the discovery rule[,] . . . which postpones a claim

from accruing if a plaintiff is reasonably unaware that he has suffered an injury or, even though he

is aware of the injury, that it was the fault of an identifiable person.” Id. (citations omitted). In

short, “the accrual of the claim will be postponed until the ‘injured party discovers, or by exercise

of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an

actionable claim.’” Id. (quoting Lopez v. Swyer, 300 A.2d 563, 565 (N.J. 1973)).

Here, Defendants argue that Plaintiff’s Section 1983 claims must be time-barred, because

they appear to arise from his May 2020 incarceration at HCCF, and yet he did not file his

Complaint until December 2023. (Mov. Br. at 35). Plaintiff has specifically alleged, however,

that he “learned of Defendants’ unconstitutional conduct only when Defendant HCPO

inadvertently produced in discovery copies of Defendant Rubel’s memorandum to Defendant

Weiner and Defendant Murphy digesting the substance of Plaintiff’s attorney-client telephone

calls.” (Compl. ¶ 36). Thus, it appears that the discovery rule would toll the limitations period

until HCPO made that disclosure. As the motion record does not indicate when HCPO did so, the

Court cannot currently find that Plaintiff’s claims are time-barred. The Court will therefore deny

the Prosecutor’s Office Defendants’ motion to the extent they seek dismissal of the Section 1983

claims on statute of limitations grounds. That denial is without prejudice to their ability to assert

a limitations defense at a later stage, if appropriate, upon a more complete factual record.

ii. “Official” Capacity Claims

In their next macro-level argument, the Prosecutor’s Office Defendants contend that

Plaintiff cannot bring Section 1983 claims against Defendants Suarez, Weiner, Rubel, Murphy,

and Medina in their official capacities. (Id. at 16–18). This Court agrees.

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).

Accordingly, to be held liable under Section 1983, a defendant must be a “person” within the

meaning of the statute. The Supreme Court has held that “neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Pol., 491 U.S.

58, 71 (1989). The Court has already found that the HCPO was acting as an arm of the state in

connection with Plaintiff’s claims. Supra section III(A). Therefore, to the extent Plaintiff seeks

Section 1983 relief against Defendants Suarez, Weiner, Rubel, Murphy, or Medina in their official

capacities, those claims fail, and the Court will dismiss them with prejudice.2

iii. Failure to Train

In his Second Cause of Action, Plaintiff has asserted a “failure to train” claim against

Defendants HCPO, HCDC&R, and HCCF pursuant to 42 U.S.C. § 1983. (Compl. ¶¶ 63–69). For

2 The Court notes that Plaintiff has not addressed the Prosecutor’s Office Defendants’ “official capacity”

argument. Rather, Plaintiff contends that he has also sued Defendants Suarez, Weiner, Rubel, Murphy, and Medina

in their individual capacities, and that they are therefore properly subject to suit under 42 U.S.C. § 1983. (Opp. Br. at

15–16). Plaintiff has, in fact, sued those defendants in both capacities. (Compl. at 1). The Court will separately

address Plaintiff’s “individual” capacity claims elsewhere in this section.

the reasons discussed in Section III(A), the Court has already found it appropriate to dismiss all

claims against the HCPO itself with prejudice. Defendants HCDC&R, and HCCF have not moved

with respect to Plaintiff’s claims against them. While Plaintiff’s Second Cause of Action is clearly

directed at the entity defendants’ conduct, rather than the actions of any individual defendant, (see,

e.g. id. ¶¶ 66–69), Plaintiff’s allegations concerning Defendant Suarez suggest that he intended

assert this claim against her as well. (Id. ¶¶ 42, 45). Indeed, the parties addressed that claim in

their respective briefing. (See Mov. Br. at 24–27 & Opp. Br. at 16–17). The Court will, therefore,

focus its analysis on Defendant Suarez, and notes that, while Plaintiff has labeled his Second Cause

of Action as a claim for “failure to train,” the parties’ arguments address Defendant Suarez’s

supervisory liability generally. (Id.).

The Court begins by acknowledging that “[a] defendant in a civil rights action must have

personal involvement in the alleged wrongs in order to be held liable as federal civil rights law

does not permit a defendant to be held liable solely on a respondeat superior basis.” Reeves v.

Cnty. of Bergen, No. 18-14061, 2025 WL 3539212, at *5 (D.N.J. Dec. 10, 2025) (first citing

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015), and then citing Rode v.

Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir. 1988)). “Claims against supervisory or municipal

defendants thus generally require a plaintiff to plead facts showing that either a supervisor had

actual knowledge of and acquiesced in an underling's wrongdoing, or the supervisor or municipal

entity was responsible for a policy, practice, or custom which was the moving force behind the

violation of the plaintiff's rights.” Id. (citations omitted). In the former situation, “a supervisor

may be personally liable under § 1983 if . . . 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

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

586 (3d Cir. 2004) (citing Baker v. Monroe Township, 50 F.3d 1186, 1190–91 (3d Cir.1995)). In

the latter, “[i]ndividual defendants who are policymakers may be liable under § 1983 if it is shown

that such defendants, ‘with deliberate indifference to the consequences, established and maintained

a policy, practice or custom which directly caused [the] constitutional harm.’” Id. (quoting

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)).

In describing Defendant Suarez’s conduct in this matter, Plaintiff alleges:

Defendant Suarez is and was responsible for setting the policies,

customs, and practices of HCPO, including the policy, custom, or

practice at issue here, specifically, the secret monitoring and

recording of inmate-attorney communications and use of them in

connection with the prosecution of those inmates . . .

Upon information and belief, Defendant Suarez, by virtue of her

position, knew of and authorized: (a) the unconstitutional conduct

alleged herein, and/or (b) the unconstitutional practice, custom

and/or policy pursuant to which the unconstitutional conduct alleged

herein took place.

(Compl. ¶¶ 43, 45). Plaintiff further alleges that “HCCF recorded at least one other inmate’s . . .

privileged attorney-client telephone calls and shared those recorded privileged communications

with Hudson County prosecutors who used the information to prosecute the inmate whose

attorney-client telephone calls were being recorded.” (Id. ¶ 37).

Taking Plaintiff’s factual allegations as true, and drawing all reasonable inferences in

Plaintiff’s favor, the Court finds that Plaintiff has alleged that Defendant Suarez established the

practice by which the HCPO works with the HCCF to obtain secret recordings of inmates’

attorney-client privileged communications, for the purpose of using the content of those

communications against the inmates in future proceedings.3 While Plaintiff has not explicitly

3 The Prosecutor’s Office Defendants argue that Plaintiff failed to “assert any ‘policy’ or ‘custom’ by the

HCPO, which somehow facilitates or acquiesces listening in on attorney-client conversations.” (Mov. Br. at 26). This

Court disagrees. While Plaintiff has not provided a detailed description of how the HCPO and the HCCF shared

attorney-client information, Plaintiff has alleged facts demonstrating that (i) Defendants secretly recorded and shared

alleged that Defendant Suarez did so with “deliberate indifference” to the consequences of that

policy, its content is such that deliberate indifference is arguably “baked in” to the creation and

implementation of the policy itself. In any event, the Court need not make a finding on that point

because Plaintiff has also alleged that Defendant Suarez “knew of and authorized” the alleged

constitutional violations issue in this case. (Compl. ¶ 45). While that allegation, on its face,

appears to amount to a mere recitation of the elements necessary to establish a supervisory liability

claim, Plaintiff’s separate allegation regarding Defendant Suarez’s creation of the policy

underlying the allegedly unconstitutional conduct lends plausibility to the idea that she

“authorized” that behavior. As the Prosecutor’s Office Defendants have not explained why those

allegations, taken together, are insufficient to establish a supervisory liability claim against

Defendant Suarez, (Mov. Br. at 24–27; Reply Br. at 7–8), they have failed to carry their burden on

this motion. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (In the context of a motion

to dismiss pursuant to Rule 12(b)(6), “[t] he defendant bears the burden of showing that no claim

has been presented.”). To the extent the Prosecutor’s Office Defendants seek dismissal of

Plaintiff’s claims against Defendant Suarez, their motion is therefore denied.

iv. Sufficiency of Plaintiff’s Factual Allegations Concerning the Other

Individual Prosecutor’s Office Defendants

The Prosecutor’s Office Defendants also argue that Plaintiff failed to allege facts necessary

to support a plausible entitlement to relief based on his Section 1983 claims against Defendants

Weiner, Rubel, Murphy, and Medina in their individual capacity. (Mov. Br. at 14–16 & 30–34).

Critically, the Prosecutor’s Office Defendants do not dispute that secretly recording, sharing, or

using Plaintiff’s attorney-client communications might serve as a viable basis for his claim.

his attorney-client communications; (ii) they did the same to at least one other inmate; and (iii) Defendants Suarez (on

behalf of HCPO) and Edwards (on behalf of HCCF and HCDC&R) created the policy or practice implementing that

arrangement. (Compl. ¶¶ 29–34, 37 & 43–46). That level of detail is sufficient at the pleadings stage.

Rather, they contend that Plaintiff has not alleged facts sufficient to establish that the

communications at issue were, in fact, privileged. (Id.; Reply Br. at 5–7). For instance, the

Prosecutor’s Office Defendants argue that Plaintiff failed to allege: (i) the name of the attorney(s)

involved in those recorded conversations; (ii) whether the attorney(s) represented him in

connection with “the criminal matter for which he was incarcerated”; (iii) whether the individuals

were “clearly identified as his attorney during course of the call,”; (iv) “the content of those

communications”; or (v) “the circumstances under which those communications were made.”

(Mov. Br. at 15–16 & 31). The Prosecutor’s Office Defendants further argue that Plaintiff has not

alleged whether he was aware that the HCCF recorded the communications at issue, and thus

suggest that Plaintiff failed to proactively demonstrate that he did not waive any attorney-client

privilege that may have otherwise attached to those calls. (Mov. Br. at 32; Reply Br. at 7).

The Court, however, finds that Plaintiff’s factual allegations are sufficient to plausibly

establish that the calls at issue in this case were privileged. First, Plaintiff alleged that Defendant

HCCF “secretly monitored and record” his “legal telephone calls with his attorneys.” (Compl. ¶

29). As Plaintiff has labeled them as “legal telephone calls,” the Court can—and must—

reasonably infer that Plaintiff and his attorneys discussed legal matters during their phone

conversations. Further, in light of Plaintiff’s allegation that Defendant Medina thereafter used

information from the calls in related civil forfeiture proceedings, (Compl. ¶ 42), the Court can also

reasonably infer that the calls concerned legal issues connected with his arrest. Finally, while

Plaintiff did not explicitly allege that he was unaware that his calls were being recorded, the Court

can reasonably infer that fact from his other allegations. For instance, Plaintiff alleged that his

“legal telephone calls with his attorneys were secretly monitored and recorded by Defendant

HCCF.” (Id. ¶ 29 (emphasis added)). That allegation clearly implies Plaintiff’s lack of knowledge.

Indeed, Plaintiff referenced the “secret” nature of Defendants’ alleged efforts to monitor and

record inmate’s legal calls throughout his Complaint. (Id. ¶¶ 34, 43–44, 48 & 58–60). Taking

these allegations and reasonable inferences together, the Court finds that Plaintiff has adequately

pled—for Rule 12(b)(6) purposes—that the calls at issue in his Complaint were subject to the

attorney-client privilege.

The Prosecutor’s Office Defendants also contend that Plaintiff engaged in impermissible

group pleading, without alleging how any of the individual defendants violated his rights. (Mov.

Br. at 32–34). In making that argument, they suggest that Plaintiff has simply “lump[ed]” them

together, without providing any specific allegations concerning their individual conduct. (Id. at

33–34). That is not accurate with respect to Plaintiff’s Section 1983 claims.

Plaintiff alleges that Defendant Rubel, a HCPO detective, reviewed the privileged

communications at issue, prepared a written summary, and then sent that summary to both

Defendant Weiner and her own supervisor, Defendant Murphy. (Compl. ¶ 31). Plaintiff further

alleges that Defendants Weiner and Murphy “directed” Rubel to do so or otherwise “supervised”

Rubel’s activities. (Id. ¶¶ 32–33). Plaintiff alleges that Defendant Medina, another HCPO

detective, used information obtained from this endeavor when making a certification “in support

of a civil forfeiture application – that funds seized from Plaintiff ‘were utilized in the furtherance

of an unlawful activity,’ or that the seized property ‘has become and/or was intended to become

an integral part of the illegal activities.’” (Id. ¶ 42). The Court has already addressed Plaintiff’s

allegations concerning Defendant Suarez. Plaintiff has thus alleged what each of the individual

Prosecutor’s Office Defendants did in connection with his 1983 claims, and those defendants bear

the burden of establishing why Plaintiff’s allegations are nonetheless insufficient. Hedges, 404

F.3d at 750. The Prosecutor’s Office Defendants have not done so, and the Court will not

undertake that analysis on their behalf.

Finally, the Prosecutor’s Office Defendants also argue that Plaintiff’s class allegations fail

because he made them on “information and belief,” without “identify[ing] any other inmate by

name or any specific case in which the same alleged activity occurred.” (Id. at 16). Defendant,

however, has not cited any authority requiring such specificity at the pleadings stage. Indeed,

imposing such particularity would essentially eliminate the class action mechanism in most

instances. In the District of New Jersey, “‘dismissal of class allegations at [the pleading] stage

should be done rarely and . . . the better course is to deny such motion because the shape and form

of a class action evolves only through the process of discovery.’” In re Allergan Biocell Textured

Breast Implant Prods. Liab. Litig., 537 F. Supp. 3d 679, 752 (D.N.J. 2021) (citation omitted). “‘A

defendant may move to strike class action allegations prior to discovery in those rare cases where

the complaint itself demonstrates that the requirements for maintaining a class action cannot be

met.’” Id. (quoting Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003)). The

Prosecutor’s Office Defendants have not made such a showing here. The Court will therefore

address Plaintiff’s ability to maintain a class action if and when Plaintiff files a motion for class

certification.

IV. CONCLUSION

Based upon the foregoing, the Motion is GRANTED IN PART AND DENIED IN

PART. Plaintiff’s claims against the HCPO are dismissed with prejudice. To the extent Plaintiff

has sued Defendants Suarez, Weiner, Rubel, Murphy, and Medina in their official capacities, those

claims are likewise dismissed with prejudice. Plaintiff’s claims under 42 U.S.C. § 1985 are

dismissed, without prejudice, as to all Defendants. The Court denies the balance of the Motion.

An appropriate Order accompanies this Opinion.

Dated: March 31, 2026

s/Esther Salas

Esther Salas, U.S.D.J.