LEMONT LOVE VS. MIDDLESEX COUNTY PROSECUTOR'S OFFICE (L-1551-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2089-18T3

LEMONT LOVE,

Plaintiff-Appellant,

v.

MIDDLESEX COUNTY

PROSECUTOR'S OFFICE,

HELEN ZANETAKOS, CINDY

GLASER, CHRIS MULLEN,

CAROLYN BERTUCCI, GLENN

GRAU, LAURETTE WILSON,

and BRUCE KAPLAN,

Defendants-Respondents.

_____________________________

Argued telephonically May 18, 2020 –

Decided June 12, 2020

Before Judges Sumners, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Union County, Docket No. L-1551-16.

Lemont Love, appellant, argued the cause pro se.

Brett J. Haroldson, Deputy Attorney General, argued

the cause for respondents (Gurbir S. Grewal, Attorney

General, attorney; Jane C. Schuster, Assistant Attorney

General, of counsel; Bryan Edward Lucas, Deputy

Attorney General, on the brief).

PER CURIAM

Appellant Lemont Love appeals from a March 23, 2018 order vacating

default and a December 13, 2018 order dismissing his complaint with prejudice.

We affirm.

I.

We derive the following facts from the record. Love was the target of a

criminal investigation involving possession and distribution of controlled

dangerous substance. On October 19, 2007, members of the Middlesex County

Prosecutor's Office (MCPO) Task Force executed a search warrant of Love's

apartment in Jamesburg. Among the numerous items seized was a bank

statement for an account Love had at Sovereign Bank with a balance of

$6,691.49.

The MCPO seized the funds in the bank account and on January 14, 2008,

it filed a civil in rem forfeiture action pursuant to N.J.S.A. 2C:64-3(a), alleging

"[s]aid monies were the proceeds from Mr. Love's illegal activities or monies

used to finance and/or facilitate said illegal drug activities." The complaint

alleged Love was unemployed and restrained to his residence at the time. It

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sought extinguishment of Love's "property rights in said monies" and forfeiture

of the monies to the participating law enforcement agencies. Conversely, Love

argued the bank records during the search showed the funds on deposit were

received from Rider Insurance Company and were not the proceeds of illegal

drug transactions. 1

On January 22, 2008, a Middlesex County Grand Jury returned an

indictment charging Love with two counts of third-degree distribution of

cocaine; one count of third-degree possession of phencyclidine (PCP); one count

of third-degree forgery; and one count of fourth-degree theft or unlawful receipt

of a credit card. Love was also charged with various other crimes, including

additional drug offenses, in three separate indictments.

Love did not move to dismiss the forfeiture action. Instead, he agreed to

an August 21, 2008 consent order staying the forfeiture action pending

completion of his criminal proceedings.

1

In fact, the Sovereign Bank statement for Love's checking account showed he

made an ATM deposit on September 12, 2007 in the amount of $8,769.90. The

account statement does not disclose the source of the deposited funds. That

deposit occurred significantly after Love received two checks from Rider

Insurance Company dated May 22, 2007, in the amount of $7,960.56, and

August 22, 2007, in the amount $809.34.

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In March 2010, Love entered into a plea agreement with the State that

resolved his pending charges under all four indictments. Pertinent to the

narcotics investigation and related forfeiture involved in this case, Love pled

guilty to third-degree distribution of cocaine. On that charge, the State agreed

to recommend a five-year term subject to a thirty-month period of parole

ineligibility. Love also pled guilty to additional charges under the other

indictments, yielding a recommended aggregate ten-year sentence subject to a

five-year period of parole ineligibility. The court accepted Love's plea and

sentenced him accordingly.

Love's subsequent motion to withdraw his guilty plea was denied by the

trial court and later affirmed on appeal. State v. Love, No. A-2483-10 (App.

Div. June 21, 2013). We found Love had not made "a colorable claim of

innocence and ha[d] not shown fair and just reasons for withdrawal" of the plea.

Id., slip op. at 10.

Love filed a civil action in federal district court under 42 U.S.C. § 1983

against the New Jersey Department of Corrections, the MCPO, Zanetakos, and

others. Love v. N.J. Dep't of Corr., No. 15-3681 (SDW), 2015 WL 4430353

(D.N.J. July 20, 2015). There, Love alleged the defendants breached an

agreement that the seized funds were to be sent to his brother. Id. at *1. The

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district court found that Zanetakos mailed the check refunding Love's seized

monies to the prison where he was incarcerated and the prison deposited the

funds into his inmate account after deducting approximately $1600 "to pay

various fees owed by [Love]." Ibid. The judge noted that while Love

characterized these deductions as "'spending' his money," the certified account

statement attached to the complaint made "it clear that these deductions covered

the costs of loans, fines, and fees [Love] owed to, among others, this [c]ourt and

the State of New Jersey arising out of his criminal convictions and filing of civil

suits." Id. at *1 n.1.

The district court dismissed Love's Section 1983 claims because they

amounted to no more than alleged negligence, which is not a cognizable cause

of action under Section 1983. 2 Id. at *4. The court also found "an adequate

post-deprivation remedy" for the alleged negligence was available under the

New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Ibid. Thus, the

alleged deprivation of property without authorization did "not result in a

2

In this case, Love's federal claims are blocked by collateral estoppel. His

arguments are identical to those raised before the district court; he had "a full

and fair opportunity to litigate the issue"; the district court entered a final

judgment to which determination of the federal claims was essential; and the

parties involved are identical. Perez v. Rent-a-Center, Inc., 186 N.J. 188, 199

(2006) (quoting Fama v. Yi, 359 N.J. Super. 353, 359 (App. Div. 2003)).

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violation of the Fourteenth Amendment." Ibid. The court declined to exercise

supplemental jurisdiction over the state law claims. Love v. Dep't of Corr., No.

15-3681 (SDW), 2016 WL 632226, at *6 (D.N.J. Feb. 17, 2016).

On February 16, 2016, Love filed this action against respondents MCPO;

then Prosecutor Bruce Kaplan; Assistant Prosecutors Helen Zanetakos, Cindy

Glaser, and Glenn Grau; Detectives Chris Mullen and Laurette Wilson; and

Investigator Carolyn Bertucci. Love alleges respondents maliciously prosecuted

him; conspired to maliciously prosecute him; violated his right to due process

by depriving him of life, liberty, and property without probable cause; destroyed

his property; and committed theft. Love named the individual respondents in

their official and individual capacities and sought an award of compensatory and

punitive damages as well as prejudgment interest.

Respondents moved to dismiss the complaint for failure to state a claim

upon which relief can be granted pursuant to Rule 4:6-2(e). On March 8, 2017,

the motion court dismissed Love's claims except for conspiracy to maliciously

prosecute. Both parties moved for reconsideration. On June 1, 2017, the motion

court partially granted reconsideration and restored Love's claim for malicious

prosecution.

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Love later moved to amend his complaint, which was denied.

Respondents filed an answer on August 7, 2017. After the discovery period

ended in June 2018, respondents again moved to dismiss the complaint pursuant

to Rule 4:6-2(e). Because respondents submitted additional supporting

documents, the motion court converted the motion into one for summary

judgment.3 Love cross-moved for summary judgment. Following oral

argument, the motion court a thirteen-page written opinion and order denying

Love's motion for summary judgment and granting respondent's motion,

dismissing the complaint with prejudice.

In his written opinion, the motion judge found: (1) respondents were

entitled to absolute and qualified immunity; (2) Love's TCA claim was time-

barred; (3) Love did not provide evidential support for his malicious prosecution

claim and the consent order—relinquishing Love's seized money back to him—

did not qualify as a "favorable termination"; and (4) Love did not provide legal

or evidential support to demonstrate a conspiracy to maliciously prosecute. This

appeal followed.

3

If "matters outside the pleadings are presented to and not excluded by the

court, the motion shall be treated as one for summary judgment and disposed of

as provided by [Rule] 4:46." R. 4:6-2.

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Love argues the trial court erred by granting respondents' motion to

dismiss based on prosecutorial immunity, qualified immunity, and late notice of

tort claim; he satisfied the favorable termination element of malicious

prosecution; and that he alleged sufficient facts to support his claim of

conspiracy to maliciously prosecute. Notably, Love does not contend there was

inadequate probable cause for the search warrant or the resulting criminal

charges brought against him.

II.

We review a trial court's decision on a motion for summary judgment de

novo, Henry v. Department of Human Servs., 204 N.J. 320, 330 (2010), and

apply the same standard employed by the trial court, Rowe v. Mazel Thirty,

LLC, 209 N.J. 35, 41 (2012). Summary judgment should be granted where there

is no genuine issue of material fact, viewing the evidence in the light most

favorable to the non-moving party, and the moving party "is entitled to judgment

as a matter of law." Rowe, 209 N.J. at 41 (citing Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 529 (1995)); R. 4:46-2(c).

On appeal, we review judgments and orders, not opinions, allowing us "to

affirm the trial court's decision on grounds different from those relied upon by "

that court. State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).

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III.

We first address Love's claim that the motion court erred in dismissing his

claims for malicious prosecution and conspiracy to maliciously prosecute based

on a lack of evidential support, absolute prosecutorial immunity, and qualified

immunity. We are unpersuaded by his arguments.

To demonstrate malicious prosecution, a plaintiff must demonstrate: (1)

the institution of the criminal proceeding by defendant against plaintiff; (2)

defendant initiated the proceeding with malice; (3) an absence of probable

cause; and (4) a favorable termination for plaintiff. LoBiondo v. Schwartz, 199

N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). "[E]ach

element must be proven, and the absence of any one of these elements is fatal to

the successful prosecution of the claim." Ibid. (citing Klesh v. Coddington, 295

N.J. Super. 51, 58 (Law Div.), aff'd, 295 N.J. Super. 1 (App. Div. 1996)).

Regarding the claim for conspiracy to maliciously prosecute, Love was

required to demonstrate respondents formed an agreement "to deprive [him] of

his civil rights." Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J.

Super. 337, 366 (App. Div. 1993). Although the unlawful agreement need not

be expressed, the participants must share the general conspiratorial objective.

Weil v. Express Container Corp., 360 N.J. Super. 599, 614 (App. Div. 1993).

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The existence of probable cause for the forfeiture action defeats any claim for

conspiracy to maliciously prosecute Love.

A. Claims Against the Prosecutors

Prosecutors are absolutely immune from Section 1983 claims for their

actions associated with the "judicial phase of the criminal process" and, thus,

shielded from liability for any wrongdoing allegedly committed while acting as

an advocate for the State. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (by

"initiating a prosecution and in presenting the State's case, the prosecutor is

immune from a civil suit for damages under § 1983").

Absolute prosecutorial immunity is not limited to Section1983 claims. It

also applies with equal force to claims under the TCA for malicious prosecution

and conspiracy to maliciously prosecute associated with the judicial phase of in

rem forfeiture actions commenced pursuant to N.J.S.A. 2C:64-3(a). See Schrob

v. Catterson, 948 F.2d 1402, 1411 (3d Cir. 1991) (stating that "absolute

immunity is extended to officials when their duties are functionally analogous

to those of a prosecutor's, regardless of whether those duties are performed in

the course of a civil or criminal action" (citing Butz v. Economou, 438 U.S. 478,

515 (1978))). Regarding forfeiture, the Third Circuit found "that a prosecutor

seeking a seizure warrant is performing 'the preparation necessary to present a

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case' and such preparation is encompassed within the prosecutor's advocacy

function." Id. at 1416. Moreover, it held "that a prosecutor's actions and

statements before a judge in support of an in rem complaint and seizure warrant

are entitled to absolute immunity." Id. at 1417.

In the case at hand, Assistant Prosecutor Glaser presented Detective

Mullen's affidavit to the court in a hearing resulting in a seizure order; Assistant

Prosecutor Grau drafted and submitted the forfeiture complaint to initiate the in

rem action against Love's bank account; Detective Bertucci provided a

certification verifying the accuracy of the forfeiture complaint; and Assistant

Prosecutor Zanetakos litigated Love's forfeiture proceeding.

Love does not claim respondents lacked probable cause to obtain the

search warrant for his apartment or the resulting charges that were prosecuted,

nor would any such claim be viable. The search warrant was issued by a neutral

magistrate. A grand jury found probable cause and returned an indictment

charging Love with the offenses. He pleaded guilty to third-degree distribution

of cocaine. His conviction was affirmed on appeal.

The decision to initiate and prosecute the forfeiture action was part of the

judicial phase of the criminal proceedings brought against Love. Those actions

fall squarely within the absolute prosecutorial immunity afforded to prosecutors.

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Accordingly, respondents Kaplan, Zanetakos, Glaser, and Grau are absolutely

immune from liability for the alleged malicious prosecution and conspiracy to

maliciously prosecute. The motion court properly dismissed Love's claims

against those respondents with prejudice.

B. Claims against the Detectives and Investigator

"Qualified immunity protects all officers 'but the plainly incompetent or

those who knowingly violate the law.'" Connor v. Powell, 162 N.J. 397, 409

(2000) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Our Supreme

Court has interpreted Section 1983 "to limit the rights of plaintiffs and to

encourage disposition of the actions as a matter of law, at least when these

actions arise out of an alleged unlawful arrest, search, or seizure by a law

enforcement officer." Kirk v. City of Newark, 109 N.J. 173, 179 (1988). The

same analysis applies to claims for malicious prosecution and conspiracy to

maliciously prosecute under the TCA.

Love asserts his rights were violated by the seizure of his bank account

and the initiation of the forfeiture action. "[A] law enforcement officer can

defend such a claim by establishing either that he or she acted with probable

cause, or, even if probable cause did not exist, that a reasonable police officer

could have believed in its existence.'" Morillo v. Torres, 222 N.J. 104, 118-19

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(2015) (quoting Kirk, 109 N.J. at 184). In fact, "probable cause is an absolute

defense to [claims for] malicious prosecution [and] Section 1983 claims."

Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000).

"[O]ur jurisprudence has held consistently that a principal component of

the probable cause standard 'is a well-grounded suspicion that a crime has been

or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State

Nishina, 175 N.J. 502, 515 (2003)); accord Orsatti v. N.J. State Police, 71 F.3d

480, 482-83 (3d Cir. 1995) (applying the same standard). In a forfeiture

proceeding, the Supreme Court has held "a pre-trial asset restraint

constitutionally permissible whenever there is probable cause to believe that the

property is forfeitable." Kaley v. United States, 571 U.S. 320, 323 (2014);

accord State v. Melendez, 454 N.J. Super. 445, 463-64 (App. Div. 2018)

(outlining the procedure under N.J.S.A. 2C:64-3 for pre-trial asset forfeiture).

Determining whether probable cause existed in a forfeiture case involves two

steps: "[t]here must be probable cause to think that (1) that the defendant has

committed an offense permitting forfeiture, and (2) that the property at issue has

the requisite connection to that crime." Kaley, 571 U.S. at 323-24.

Here, the motion court found respondents had probable cause to seize

Love's assets since the investigation revealed

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he had a motive and the expertise to commit the

suspected crimes of drug possession and distribution,

had been in the residence where the crimes and

subsequent search occurred, was among the people

[who] would have been aware that a large amount of

[cash] might have been in that residence, and was

described by witness[es] as having been in the area on

several occasions around the time of the crime.

We concur. Previously, we have found that a large sum of currency in

close proximity to CDS, paraphernalia, and other illegal activities is a significant

factor in determining whether the currency is forfeitable. See State v.

$36,560.00 in U.S. Currency, 289 N.J. Super. 237, 255 (App. Div. 1996) (noting

that "money's proximity to prima facie contraband, such as controlled dangerous

substances, or admitted past or planned illegal activity," in conjunction with

other evidence of illegality, weighs in favor of forfeiture (quoting State v. Seven

Thousand Dollars, 136 N.J. 223, 235 (1994))).

According to the search warrant inventory, along with Love's bank

account statement, police also seized the following items from Love's apartment:

(1) "numerous copies of one[-]hundred and fifty dollar bills"; (2) "two glass

vials"; (3) "three boxes of sandwich bags"; (4) "three T-Mobile blackberry cell

phones"; (5) "one prescription for Percocet"; and (6) "numerous I.D. cards."

Indeed, Love does not dispute that these items were seized from his apartment

and that he was indicted and pled guilty to a charge supported by this evidence.

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Based upon the totality of the circumstances, we hold there was probable

cause to seize Love's bank account and initiate the forfeiture action. Therefore,

the conduct of Mullen, Wilson, and Bertucci "was justified by objectively

reasonable belief that it was lawful." Connor, 162 N.J. at 409 (quoting Gomez

v. Toledo, 446 U.S. 635, 640 (1980)).

Because there was probable cause to initiate the forfeiture action, the

motion court properly granted summary judgment dismissing Love's claims

against Mullen, Wilson, and Bertucci because each are entitled to qualified

immunity and cannot be found liable under Section 1983 or the TCA.

As no members of the MCPO are liable, the MCPO cannot be found liable

under the doctrine of respondeat superior or otherwise.

IV.

We find no merit in Love's claim that the remittance of his funds to the

Department of Corrections (DOC) rendered respondents liable for damages.

We first note that contrary to Love's assertions, there was no consent order

requiring respondents to remit the seized funds to Love's brother. At most, there

was an informal verbal representation that the funds would be sent to his brother.

Thus, returning the funds to Love through the DOC did not violate his rights or

otherwise render respondents liable for damages.

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Inmate funds are deposited into inmate accounts. Deductions from inmate

accounts shall be made for fines, assessments, restitution, other court-ordered

obligations, and transaction fees. N.J.A.C. 10A:2-2.2(f). In addition, "[i]n

accordance with N.J.S.A. 30:4-16.4, monies" received by an inmate that are

"derived from a civil action judgment" "shall be deposited in the account of the

inmate" and "used to pay court-imposed fines, restitution or penalties that the

inmate has not met; and may be used to satisfy any claims for reimbursement "

of the State, a county, or the DOC. N.J.A.C. 10A:2-2.2(i).

Love attempted to have the seized funds remitted to his brother rather than

to his inmate account to avoid paying his outstanding financial obligations. As

noted by the district court:

[Love] did not "lose" the property at issue when the

prison deposited the check. [He] still had the same

amount of money at the moment that this deposit took

place and the prison itself didn't keep that money for

itself. As this [c]ourt noted in screening the complaint,

the only loss of funds, and in turn the loss of property,

occurred when the prison, in accordance with its

procedures, automatically deducted . . . money which

[Love] legitimately owed to the prison, the State of

New Jersey, and this [c]ourt based on his criminal

conviction, various loans he had taken from the prison,

and fines and fees owed the State.

[Love, 2016 WL 632226, at *3 n.3.]

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The district court concluded "it is doubtful that any 'taking' of property without

due process actually took place." Ibid. We agree.

The funds deducted from his inmate account were applied against the

balances owed to the DOC, the State, and the district court. To that extent, Love

suffered no loss or damages. Instead, the financial obligations he owed were

reduced by the deductions made, less authorized transaction fees. Consequently,

he suffered no deprivation of property without due process.

V.

In light of our rulings, we do not reach Love's claim that the trial court

erred in finding his claims under the TCA were time-barred.

Love's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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