Estate Frank P. Lagano v. Bergen County Prosecutors Offi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3232

_____________

ESTATE OF FRANK P. LAGANO,

Appellant

v.

BERGEN COUNTY PROSECUTOR’S OFFICE;

MICHAEL MORDAGA; VARIOUS JOHN DOE

AND JANE DOE DEFENDANTS,

whose individual identities or wrongful

acts are not now known to Plaintiff

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-12-cv-05441)

District Judge: Honorable Faith S. Hochberg

_____________

Argued March 19, 2014

Before: CHAGARES, GREENAWAY, JR., and

VANASKIE, Circuit Judges.

(Filed October 15, 2014)

William H. Buckman, Esq.

William H. Buckman Law Firm

110 Marter Avenue, Suite 209

Moorestown, NJ 08057

Edward M. Koch, Esq.

White & Williams

1650 Market Street

1800 One Liberty

Philadelphia, PA 19103

David M. Ragonese, Esq. [Argued]

White & Williams

457 Haddonfield Road

Suite 400, Liberty View

Cherry Hill, NJ 08002

Attorneys for Plaintiff/Appellant

John J. Hoffman, Esq.

Lisa A. Puglisi, Esq.

Brian G. Flanagan, Esq. [Argued]

Eric S. Pasternack, Esq.

Office of Attorney General of New Jersey

PO Box 112

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Attorneys for Defendants/Appellees

_____________

OPINION

_____________

2

VANASKIE, Circuit Judge.

Frank P. Lagano was fatally shot on April 12, 2007, in

front of a diner in East Brunswick, New Jersey. More than

five years later, in August 2012, the Estate of Frank P.

Lagano (“the Estate”) filed suit against, inter alia, the Bergen

County Prosecutor’s Office (the “BCPO”) and former BCPO

Chief of Detectives Michael Mordaga, alleging that BCPO

personnel improperly revealed to members of organized

crime that Lagano was an informant and this disclosure led to

Lagano’s murder. Specifically, the Estate contends the

alleged disclosure of Lagano’s status as a confidential

informant established a state-created danger in violation of

his due process rights. The Estate also challenges a

December 2004 search of Lagano’s home and seizure of his

property. The BCPO and Mordaga (collectively,

“Appellees”) each filed motions to dismiss the Estate’s

complaint under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). The District Court granted both motions and

dismissed the Estate’s claims in their entirety. For the

reasons that follow, we will affirm in part, vacate in part, and

remand for further proceedings consistent with this opinion.

I.

According to the Estate, Lagano and Michael Mordaga

shared a long-term business and personal relationship.1

1

As is required when reviewing a district court’s

dismissal under Rules 12(b)(1) and 12(b)(6), our recitation of

the facts assumes the truthfulness of the Estate’s well-pled

allegations. Rea v. Fed. Investors, 627 F.3d 937, 940 (3d Cir.

3

Lagano was also the subject of an organized crime

investigation by the BCPO, where Mordaga served as Chief

of Detectives. On December 1, 2004, BCPO detectives

executed a search warrant at Lagano’s home in New Jersey,

during which they seized more than $50,000 in cash along

with other items. Detectives from the BCPO also executed

search warrants on Lagano’s safe deposit boxes, which

resulted in the seizure of additional funds. Lagano was

charged with several crimes, including racketeering,

promoting gambling, criminal usury, and conspiracy.

After Lagano was charged, Mordaga allegedly brought

Lagano to his office and instructed him to retain a specific

attorney with the assurance that the attorney could “make his

legal problems go away.” (Estate’s Br. 12.) Lagano did not

follow Mordaga’s instructions. Instead, according to the

Estate’s allegations, Lagano agreed to serve as a confidential

informant for James Sweeney, who was employed at the time

as an investigator with the Criminal Justice Division of the

New Jersey Attorney General’s Office (“the DCJ”).

Mordaga subsequently attended a dinner meeting with

Lagano, where he once again urged Lagano to hire the

attorney he recommended, assuring him that, if he did so,

“half his money would be returned and . . . [he] would serve

no prison time.” (App. 31a ¶ 28.) Lagano rejected

Mordaga’s offer, and their relationship “soured.” (Id. 30a ¶

21.)

2010); Gould Elec. Inc. v. United States, 220 F.3d 169, 176

(3d Cir. 2000).

4

The Estate avers that sometime thereafter, “[BCPO]

personnel . . . disclosed to alleged members of traditional

Organized Crime families . . . that [Lagano] had been an

informant.” (Id. 32a ¶ 32.) On April 12, 2007, more than two

years after his arrest, Lagano was shot and killed. The Estate

argues that Lagano’s death resulted from the actions of

Mordaga and other BCPO employees, who allegedly

“conspired to illegally arrest and steal funds from Lagano in

2004 and, then, intentionally, and with reckless disregard for

Lagano’s safety, conspired to disclose Lagano’s status as a

confidential informant to known members of Organized

Crime.” (Estate’s Br. 9.)

On August 29, 2012, the Estate filed a three-count

complaint against the State of New Jersey, the BCPO,

Mordaga, and various John and Jane Doe Defendants. The

bulk of the Estate’s factual averments were based on

allegations made by James Sweeney, who is now deceased, in

a complaint he filed in 2010 (“the Sweeney Complaint”).2

2

Sweeney served as Sergeant State Investigator for the

DCJ. Following the termination of his employment in

September 2008, Sweeney filed suit against the State of New

Jersey, the New Jersey Attorney General’s Office, the DCJ,

and several officers, alleging a violation of the New Jersey

Racketeer Influenced and Corrupt Organizations Act

(“NJRICO”), N.J. Stat. Ann. §§ 2C:41-1 et. seq. The

Sweeney Complaint alleged widespread corruption within the

BCPO, which he believed was involved in “business dealings

with alleged members of Organized Crime families and the

unlawful seizure, retention and use of monies by high ranking

members of that County’s Prosecutor’s Office.” (App. 114a.)

It also alleged that several officials at the DCJ knowingly

5

The Estate contends that it discovered the facts relevant to

this appeal through the Sweeney Complaint.

The Estate filed a first amended complaint

(hereinafter, “the amended complaint”) on December 12,

2012, which asserts the same claims as averred in the original

complaint but omits the State of New Jersey as a defendant.

Count 1 presents a due process claim under the state-created

danger theory, asserting that Appellees violated Lagano’s

rights by disclosing his identity as a confidential informant,

thus proximately causing his death. Count 2 asserts the same

claim, but under the New Jersey Constitution, made

actionable via the New Jersey Civil Rights Act, N.J. Stat.

Ann. § 10:6-1 to -2 (“NJCRA”). Count 3 asserts violations of

the Fourth Amendment’s prohibition against unreasonable

searches and seizures, made actionable by 42 U.S.C. §§ 1983

and 1985.

attempted to obstruct Sweeney’s investigation into this

corruption.

Most relevant to this appeal, the Sweeney Complaint

included allegations related to Mordaga’s relationship with

Lagano, the BCPO’s organized crime investigation, and the

search and seizure at Lagano’s home, which Sweeney

claimed was improper. Significantly, following Lagano’s

murder on April 12, 2007, Sweeney alleged that he sent an

email to a superior “advising him of sensitive data concerning

[Mordaga] and [Lagano’s] relationship,” because he believed

this data “could potentially have created a motive for

[Lagano’s] murder.” (App. 116a.)

6

The BCPO filed a motion to dismiss, and the District

Court granted the motion on March 22, 2013. Mordaga then

filed a motion to dismiss, which the District Court granted on

June 19, 2013. The Estate filed this timely appeal.

II.

The District Court had jurisdiction under 28 U.S.C. §§

1331, 1343, and 1367. We have jurisdiction under 28 U.S.C.

1291. We review de novo a district court’s dismissal under

Rule 12(b)(1), see Common Cause of Pa. v. Pa., 558 F.3d

249, 257 (3d Cir. 2009), as well as Rule 12(b)(6), see Wiest v.

Lynch, 710 F.3d 121, 128 (3d Cir. 2013).

III.

The District Court’s dismissal rested on several

alternative theories: the District Court dismissed all counts on

the basis that neither Mordaga nor the BCPO is a “person”

amenable to suit under 42 U.S.C. § 1983, § 1985, or the

NJCRA; it dismissed all counts against the BCPO on the

basis that the BCPO is entitled to Eleventh Amendment

sovereign immunity; it dismissed Counts 1 and 2 against

Mordaga on the basis that he is entitled to qualified

immunity; and it dismissed Count 3 on the alternative basis

that it is barred by the statute of limitations. We will discuss

each in turn.

A. The BCPO and Mordaga as “Persons”

We begin with the question of whether Appellees are

“persons” amenable to suit under 42 U.S.C. § 1983, §1985, or

the NJCRA. In its March 22, 2013 opinion, the District Court

held that the BCPO is not a “person” subject to liability under

7

these provisions. In its June 19, 2013 opinion, the District

Court concluded that Mordaga is not a “person” subject to

suit under the federal civil rights laws. Because the District

Court erred in reaching these conclusions, we will vacate the

dismissal on this ground.

1. Sections 1983 and 1985

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). Section 1985 imposes liability “if

two or more persons” conspire to interfere with civil rights in

a manner enumerated therein. Id. § 1985 (emphasis added).3

3

We have never explicitly decided whether the term

“person” has the same meaning under §§ 1983 and 1985.

Nevertheless, the district courts in our Circuit have

consistently answered that question in the affirmative. See,

e.g., Carabello v. Beard, 468 F. Supp. 2d 720, 723 n.2 (E.D.

Pa. 2006); Wright v. Phila. Hous. Auth., No. 94-1601, 1994

WL 597716, at *2-3 (E.D. Pa. 1994); Rode v. Dellarciprete,

617 F. Supp. 721, 723 n.2 (M.D. Pa. 1985). Here, neither

party argues that “person” means something different under §

1985 than under § 1983, and we see no reason why this

should be so. We, like our sister Court of Appeals in Owens

v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979), therefore

assume that “person” has the same meaning under both §§

1983 and 1985.

8

The District Court found that the BCPO was an arm of

the State of New Jersey, and that Mordaga, as BCPO Chief of

Detectives, was a state official. In Will v. Michigan

Department of State Police, 491 U.S. 58, 71 (1989), the Court

held that “neither a State nor its officials acting in their

official capacities are ‘persons’ under § 1983.” 4 Local

governmental bodies and their officials, by contrast, are

regarded as “persons” amenable to suit under § 1983. See

Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978).

Because local governmental bodies and their officials

are “persons” under §§ 1983 and 1985, and state agencies and

their officials acting in their official capacity are not, we must

decide initially whether the BCPO is an arm of the State of

New Jersey or of Bergen County. If the BCPO is an arm of

the State of New Jersey, we must then decide whether

Mordaga has been sued exclusively in his official capacity as

BCPO Chief of Detectives.5

Our resolution of the first question—whether the

BCPO is an arm of the State—is guided by Coleman v. Kaye,

87 F.3d 1491 (3d Cir. 1996). In Coleman, we held that

“when [New Jersey] county prosecutors engage in classic law

4

As to officials of the State, the Court in Will

explained that “[o]bviously, state officials literally are

persons[,] [b]ut 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.” 491 U.S. at 71.

5

Of course, a state official sued in his or her personal

capacity is amenable to suit under §§ 1983 and 1985. See

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

9

enforcement and investigative functions, they act as officers

of the State.” Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.

1996). When county prosecutors perform administrative

functions “unrelated to the duties involved in criminal

prosecution,” however, they act as county officials. Id. at

1505–06.

Here, the District Court found that “the BCPO was

acting within its classical function of investigating criminal

activities and conducting criminal prosecutions with respect

to Mr. Lagano.” (App. 13a.) Similarly, the District Court

found that Mordaga “was acting as the Chief of Detectives in

the BCPO, a state agency,” and that Mordaga was acting “in

his official capacity in connection with the allegations made

by Lagano’s Estate.” (App. 8a.) Based upon these findings,

the District Court concluded that neither the BCPO nor

Mordaga were amenable to suit under §§ 1983 and 1985, and

dismissed those claims accordingly.

It is, of course, true that in some respects the amended

complaint avers activity within the BCPO and actions taken

by Mordaga that fall within the ambit of “classic law

enforcement and investigative functions.” Coleman, 87 F.3d

at 1505. But the amended complaint must be read as a whole,

and its averments and the inferences reasonably drawn from

those averments must be viewed in the light most favorable to

the plaintiff. See S.H. ex rel. Durell v. Lower Merion Sch.

Dist., 729 F.3d 248, 256 (3d. Cir. 2013). In this case, the

amended complaint is replete with allegations that Mordaga

and others within the BCPO were not performing the classic

functions of law enforcement or criminal investigators.

For instance, the amended complaint alleged that

Lagano and Mordaga “enjoyed a personal and business

10

relationship,” (App. 29a ¶ 11), which included “vacation[ing],

visit[ing,] . . . socializ[ing,]” and “multiple business

ventures.” (Id. ¶ 12, 14.) The amended complaint also

alleged that Mordaga met with Lagano after Lagano’s home

was searched, provided him with the name of a specific

attorney, and assured Lagano that, if he retained this attorney,

“90% of [his] problems would go away.” (Id. 30a ¶ 20.)

After Lagano failed to retain the recommended attorney, the

amended complaint averred that Mordaga attended a “dinner

meeting,” during which Mordaga advised Lagano that “half

his money would be returned and guaranteed that [Lagano]

would serve no prison time if [he] hired the attorney Mordaga

recommended.” (Id. 31a ¶ 27.) As to the disclosure of

Lagano’s identity as a confidential informant, the amended

complaint alleged that “[BCPO] personnel thereafter

disclosed to alleged members of traditional Organized Crime

families arrested in raids on December 1, 2004 that [Lagano]

had been an informant.” (Id. 32a ¶ 32.)

The amended complaint clearly alleges that Mordaga’s

relationship with Lagano extended beyond Mordaga’s official

role as BCPO Chief of Detectives during the BCPO

investigation of Lagano. It can also reasonably be inferred

from the allegations that Mordaga was not performing classic

investigatory and prosecutorial functions when he urged

Lagano to retain a specific attorney on the assurance that this

attorney could make Lagano’s problems disappear. It can

also be inferred from the amended complaint that the alleged

disclosure of Lagano’s status as a confidential informant was

unrelated to any lawful investigative or prosecutorial

11

function.6 These allegations support a reasonable inference

that neither Mordaga nor the BCPO acted within their classic

investigatory and prosecutorial functions with respect to the

state-created danger claim advanced by the Estate.

Accordingly, the District Court erred in holding that the

amended complaint alleged that the BCPO and Mordaga

acted exclusively in classic law enforcement and investigative

functions so as to make them part of the State and thus not

amenable to suit under §§ 1983 and 1985.

Even if the amended complaint could not be viewed as

alleging conduct outside classic law enforcement and

investigative functions, the dismissal as to Mordaga was

incorrect for an additional reason. Mordaga is sued not only

in his official capacity, but also in his personal capacity. (See

Estate Br. 31.) Accordingly, he most certainly is amenable to

suit as a “person” under §§ 1983 and 1985. See Hafer, 502

U.S. at 27. In Hafer, the Supreme Court explicitly rejected

the theory that “state officials may not be held liable in their

personal capacity for actions they take in their official

capacity.” Id. Thus, under Hafer, the District Court erred in

6

Lagano’s complaint intermittently describes this

disclosure in language that suggests it was intentional (see,

e.g., App. 32a ¶ 32 (“[BCPO] personnel thereafter disclosed .

. .”)), and in language that suggests it may have been

inadvertent (see, e.g., id. ¶ 36 (“By failing to protect from

disclosure . . . .”)). The District Court is free to consider,

therefore, whether the complaint sufficiently pled the

requisite affirmative act on the part of the BCPO or Mordaga

that is required to state a claim under the state-created danger

theory. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 235

(3d Cir. 2008).

12

dismissing the amended complaint against Mordaga in his

personal capacity.

2. New Jersey Civil Rights Act

In addition to bringing suit under the federal civil

rights statutes, the Estate raised a claim under the NJCRA,

N.J. Stat. Ann. § 10:6-1 to -2. Like 42 U.S.C. § 1983, the

NJCRA “premise[s] liability on the conduct of a ‘person.’”

Lopez-Siguenza v. Roddy, No. 13-2005 (JBS/JS), 2014 WL

1298300, at *7 (D.N.J. Mar. 31, 2014). New Jersey district

courts have interpreted the NJCRA as having incorporated the

Supreme Court’s decision in Will that, for purposes of § 1983,

states and state officials acting in their official capacity are

not amenable to suit. See id. at *5; Didiano v. Balicki, Civ.

No. 10-4483 (RBK/AMD), 2011 WL 1466131, at *8 (D.N.J.

Apr. 18, 2011); Slinger v. New Jersey, Civ. No. 07-5561

(DMC), 2008 WL 4126181, at *7–8 (D.N.J. Sept. 4, 2008),

rev’d in part, 366 F. App’x 357 (3d Cir. 2010). Because the

District Court erred in concluding at this stage that neither the

BCPO nor Mordaga were “persons” amenable to suit under

§§ 1983 and 1985, it likewise erred in concluding that they

are not “persons” under the NJCRA. 7 Accordingly, we will

vacate the dismissal of Count 2 on that ground as well.

7

The District Court and the parties cite N.J. Stat. Ann.

§ 1:1-2, which defines “person” for purposes of New Jersey

law as:

corporations, companies,

associations, societies, firms,

partnerships and joint stock

companies as well as individuals,

13

B. Eleventh Amendment Sovereign Immunity

The District Court also dismissed the amended

complaint as to the BCPO on the alternative basis that the

unless restricted by the context to

an individual as distinguished

from a corporate entity or

specifically restricted to 1 or some

of the above enumerated

synonyms and, when used to

designate the owner of property

which may be the subject of an

offense, includes this State, the

United States, any other State of

the United States as defined infra

and any foreign country or

government lawfully owning or

possessing property within this

State.

(emphasis added). The District Court’s analysis focused

solely on whether the state was used here “to designate the

owner of property which may be the subject of an offense,”

and concluded that it was not. While we agree with the

District Court that this exception for property disputes is not

implicated here, we must nevertheless vacate the dismissal

pursuant to the NJCRA because the District Court’s analysis

assumes that the BCPO and Mordaga acted as agents of the

state, and we hold that the District Court erred in drawing that

conclusion at this stage.

14

BCPO is protected by Eleventh Amendment sovereign

immunity. The Eleventh Amendment of the United States

Constitution provides:

The 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.

Sovereign immunity extends to state agencies and state

officers, “as long as the state is the real party in interest.”

Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d

Cir. 1989). It does not extend to counties and municipalities.

Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807, 813 (3d Cir.

1991) (“[A]lthough political subdivisions of a state, such as

counties and municipalities, fall within the term ‘State’ as

used in the Fourteenth Amendment, political subdivisions are

not ‘State[s]’ under the Eleventh Amendment.”). To

determine whether the state is the real party in interest, this

Court considers three factors: (1) whether the money to pay

for the judgment would come from the state; (2) the status of

the agency under state law; and (3) what degree of autonomy

the agency has. Fitchik, 873 F.2d at 659.

Rather than applying Fitchik to the facts alleged by the

Estate to reach the conclusion that the BCPO was entitled to

Eleventh Amendment sovereign immunity, the District Court

relied solely on our decision in Coleman. The District

15

Court’s reading of Coleman is erroneous. First, Coleman

never mentions Fitchik. And second, Coleman does not

address Eleventh Amendment sovereign immunity. Instead,

Coleman focuses on the question of what entities and public

officials may be regarded as arms and officials of the State for

the purpose of determining whether the named entity and

public official are to be regarded as “persons” subject to suit

under § 1983. The District Court’s analysis improperly

conflates the jurisprudence interpreting the term “person” in

the context of § 1983 with the concept of Eleventh

Amendment sovereign immunity. Although the existence of

Eleventh Amendment sovereign immunity was a factor

considered by the Supreme Court in Will, the two concepts

are analytically distinct. See Hafer, 502 U.S. at 30 (“Most

certainly, Will’s holding does not rest directly on the Eleventh

Amendment.”).

Appellees point to our unpublished decision in

Beightler v. Office of Essex Cnty. Prosecutor, 342 Fed. App’x

829, 832 (3d Cir. 2009) (per curiam), which stated that

Coleman “essentially analyzed the same factors presented in

Fitchik,” as support for the District Court’s conclusion that

the Fitchik factors are met any time a court finds that county

prosecutors act as arms of the state by performing classic law

enforcement functions. However, we are not bound or

persuaded by Beightler’s statement that the Fitchik inquiry is

satisfied whenever a county prosecutor engages in classic

prosecutorial functions. We therefore conclude that Fitchik

provides the proper framework for analyzing Eleventh

Amendment sovereign immunity as it applies to county

prosecutors, and on remand the District Court must apply

16

Fitchik to determine whether the BCPO is entitled to Eleventh

Amendment sovereign immunity in this case.8

C. Qualified Immunity

We turn now to the District Court’s finding that

Mordaga is protected by qualified immunity. “The doctrine

of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). To resolve a claim of

qualified immunity, a court must engage in a two-pronged

analysis to decide (1) whether the plaintiff alleged sufficient

facts to establish the violation of a constitutional right, and (2)

whether the right was “clearly established” at the time of the

defendant’s actions. Id. at 232.

The Estate’s claim is grounded in the Due Process

Clause of the Fourteenth Amendment, which provides that no

State shall “deprive any person of life, liberty, or property,

without due process of law . . . .” U.S. Const. amend. XIV, §

8

Of course, the fact that we have held that the

amended complaint does not allege that the BCPO was acting

at all times within its classic prosecutorial investigative

capacity is enough to undermine the District Court’s Eleventh

Amendment ruling. We emphasize, however, that the

Eleventh Amendment inquiry is analytically distinct from the

question of whether a county entity is a “person” for § 1983

purposes, and Fitchik controls the Eleventh Amendment

inquiry.

17

1. We have recognized that “[i]ndividuals have a

constitutional liberty interest in personal bodily integrity that

is protected by the Due Process Clause of the Fourteenth

Amendment.” Phillips, 515 F.3d at 235. In general, this

liberty interest does not require the state to affirmatively

protect its citizens. DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 195–96 (1989). One exception to

this general rule is the state-created danger theory, and it is

under this theory that the Estate proceeds on its due process

claims.

To establish a claim under the state-created danger

theory, a plaintiff must prove that:

(1) the harm ultimately caused

was foreseeable and fairly direct;

(2) a state actor acted with a

degree of culpability that shocks

the conscience;

(3) a relationship between the

state and the plaintiff existed such

that the plaintiff was a foreseeable

victim of the defendant’s acts, or

a member of a discrete class of

persons subjected to the potential

harm brought about by the state’s

actions, as opposed to a member

of the public in general; and

(4) a state actor affirmatively used

his or her authority in a way that

created a danger to the citizen or

18

that rendered the citizen more

vulnerable to danger than had the

state not acted at all.

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.

2006) (internal quotation marks and footnotes omitted).

The Estate asserts that Appellees—either Mordaga or

another employee within the BCPO—disclosed Lagano’s

status as a confidential informant to members of organized

crime families, and that this disclosure established a state-

created danger that resulted in his murder. Mordaga

responded that he is entitled to qualified immunity on the

state-created danger claims because the Estate failed to

establish either a violation of a constitutional right, or that the

constitutional right was clearly established at the time of the

alleged violation.

The District Court focused on the second prong of the

qualified immunity analysis, holding that the constitutional

right claimed to have been violated was not clearly

established at the time of Lagano’s murder. In reaching this

conclusion, the District Court reasoned that because “[t]here

are no published cases that extend the state created danger

right to confidential informants in the Third Circuit[,] . . . it

would be unfair to hold that a constitutional right was ‘clearly

established.’” (App. 6a–7a.) The District Court defined the

right asserted by the Estate as “a confidential informant’s

constitutional right to nondisclosure.” (Id.)

We cannot endorse the District Court’s unduly narrow

construction of the right at issue, or its statement that the right

was not clearly established. It has been clearly established in

this Circuit for nearly two decades that a state-created danger

19

violates due process. See Kneipp v. Tedder, 95 F.3d 1199,

1211 (3d Cir. 1996) (holding that state-created danger theory

is “viable mechanism for establishing a constitutional

violation.”). That we have not applied the state-created

danger theory in the context of a confidential informant is not

dispositive on the qualified immunity defense. As the

Supreme Court explained in Hope v. Pelzer, 536 U.S. 730

(2002), “[a]lthough earlier cases involving fundamentally

similar facts can provide especially strong support for a

conclusion that the law is clearly established, they are not

necessary to such a finding.” Id. at 741 (internal citation and

quotation marks omitted). Thus, the Estate can overcome

Mordaga’s qualified immunity defense without proving that

we have previously issued a binding decision recognizing a

state-created danger in the context of the disclosure of a

confidential informant’s status, and the District Court erred in

requiring it to do so.

The focus of the qualified immunity inquiry is on the

allegations made by the Estate. Specifically, the question is

whether the facts averred by the Estate fall within the

elements of the state-created danger theory, and whether “it

would be clear to a reasonable officer” that the alleged

disclosure was unlawful under the circumstances. Saucier v.

Katz, 533 U.S. 194, 202 (2001). We express no opinion as to

whether the amended complaint satisfies these inquiries, but,

because the District Court failed to apply the proper standard,

we must vacate the District Court’s decision in favor of

Mordaga on the qualified immunity defense.

D. Statute of Limitations

The District Court dismissed Count 3 on the

alternative basis that it is barred by the statute of limitations.

20

In determining the length of the statute of limitations for a

claim arising under § 1983, courts must apply the limitations

period applicable to personal-injury torts in the State in which

the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387

(2007). In New Jersey, where Lagano’s claim arose, personal

injury claims are governed by a two-year statute of

limitations. N.J. Stat. Ann. § 2A:14-2.9 Consequently, the

statute of limitations for Count 3, which asserts a violation of

the Fourth Amendment’s prohibition against unreasonable

searches and seizures made actionable under §§ 1983 and

1985, is two years. Because the Estate did not file suit until

August 29, 2012, the cause of action, to be timely, cannot

have accrued earlier than August 29, 2010.

The date of accrual of a § 1983 claim is a matter of

federal law. Wallace, 549 U.S. at 388. We have described

that inquiry as follows:

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.’”

[Wallace, 539 U.S. at 388]

(quoting Bay Area Laundry and

Dry Cleaning Pension Trust Fund

9

N.J. Stat. Ann. § 2A:12-2(a), in pertinent part,

provides that “[e]very action at law for an injury to the person

caused by the wrongful act, neglect or default of any person

within this State shall be commenced within 2 years next after

the cause of such action shall have accrued . . . .”

21

v. Ferbar Corp. of Cal., 522 U.S.

192, 201 (1997)). As the Court in

Wallace explained, “‘the tort

cause of action accrues, and the

statute of limitations commences

to run, when the wrongful act or

omission results in damages.’”

Id. at 391 (quoting 1 Calvin W.

Corman, Limitation of Actions §

7.4.1 (1991)).

Dique v. N.J. State Police, 603 F.3d 181, 185–86 (3d Cir.

2010).

Here, the search of Lagano’s home took place on

December 1, 2004. On January 13, 2005, the BCPO brought

a forfeiture action against Lagano under N.J. Stat. Ann. §

2C:65-1, claiming that a total of $265,428 was seized from

Lagano during the search. Lagano filed an answer to the

forfeiture action in 2005, and the Estate was substituted in

Lagano’s place following his death in 2007. Without arguing

for any specific date, Appellees contend that “[a]t the very

latest, the theft claim accrued in 2007, when the Estate

became a party to the forfeiture action,” and that as a result,

the statute of limitations would have run at the latest in 2009.

(Appellees’ Br. 40.) The District Court agreed, finding that

the Estate “knew or should have known about the search and

seizure claims at the time of filing of Lagano’s Answer on

March 9, 2005, or at the latest, in 2007, when the Estate

became involved in that action.” In this regard, the District

Court observed that “[u]pon substitution into the forfeiture

action, the Estate had access to Lagano’s documents and

filings involving the search and seizure matters.” (App. 16a.)

22

The Estate argues that the cause of action did not

accrue until Sweeney filed his complaint in federal court in

September 2010.10 Although Lagano filed an answer to the

forfeiture action in 2005, the Estate still argues that the

answer “merely acknowledges Lagano’s awareness of the

search and seizure, not the illegality of it,” and that the

answer therefore did not put the Estate on notice that

Lagano’s rights were violated. (Appellant’s Br. 45.) Thus,

according to the Estate, the cause of action did not accrue

until the Sweeney Complaint was filed in September 2010,

and the statute of limitations did not expire until September

10

The relevant allegations in the Sweeney Complaint

state that members of the BCPO “confiscated the monies

from [Lagano’s] home and failed and/or refused to provide

the family with a receipt of same when they requested an

inventory,” (App. 111a ¶ 28), “searched the safe deposit box

only after directing the bank representative to leave the

room,” (id. ¶ 30), “seized items from [Lagano’s] safe deposit

box and failed and/or refused to provide a receipt of same,”

(id. ¶ 31), and that “after the arrest, [Lagano’s] relationship

with [Mordaga] soured in part because [Lagano] claimed not

all of his money and property was returned to him.” (Id. 112a

¶ 36.) Perhaps most relevant to the claim asserted in Count 3,

the Sweeney Complaint also states that Sweeney “advised his

superiors . . . of potential corruption within the hierarchy of

that County Prosecutor’s Office, including business dealings

with alleged members of Organized Crime families and the

unlawful seizure, retention and use of monies by high ranking

members of that County Prosecutor’s Office.” (Id. 114a ¶ 50

(emphasis added).)

23

2012. Under this theory, the Estate’s August 2012 complaint

would be timely.

The Estate’s arguments are unpersuasive. Lagano’s

home was searched and his property was seized in December

2004, giving rise to the claim for damages. The record

demonstrates that Lagano himself knew about the allegedly

unlawful search and seizure by March 2005 at the latest, and

thus had a complete cause of action at that time. See Dique,

603 F.3d at 185–86. As a result, the two-year period of

limitations expired in March 2007, before Lagano’s death the

following month. We therefore hold that Count 3 is barred by

the statute of limitations, and we will affirm the District

Court’s dismissal of Count 3 accordingly.

IV.

We must address one final issue. The Estate argues

that it should be permitted to file a second amended

complaint upon remand. We agree. We have held that

whether or not a plaintiff seeks leave to amend, a district

court considering a 12(b)(6) dismissal “must permit a curative

amendment unless such an amendment would be inequitable

or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker,

363 F.3d 229, 235 (3d Cir. 2004)). Here, the District Court

dismissed the Estate’s complaint against the BCPO with

prejudice without making a finding that further amendment

would be futile. This, too, was improper. The Estate must be

permitted to file a second amended complaint unless the

District Court makes a finding of futility.

24

V.

For the foregoing reasons, we will affirm in part and

vacate in part the judgment entered by the District Court, and

remand for further proceedings consistent with this opinion.

25