wrongdoing in certain, specified instances. Of particular relevance here, the Act provides that a public employee cannot avail himself of the limitations as to liability and damages "if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14.
The plaintiffs' briefs in opposition to summary judgment do not allege that the remedies provided under the New Jersey Tort Claims Act are unavailable in the instant action. In fact, plaintiff James' theory of liability under count III is cast in such a way as to trigger the applicability of N.J.S.A. 59:3-14. The plaintiff's theory here is that the interference with plaintiff's business and the property loss allegedly experienced by him "were the result of the defendants' malicious prosecution of plaintiff. . . ." (James' Second Amended Complaint at 4.) Thus, if plaintiff is able to prove the allegations underlying count III -- that the defendants acted with actual malice -- sovereign immunity does not bar recovery under New Jersey law. In light of the existence of this apparently adequate state remedy, the court believes that plaintiff cannot maintain a § 1983 action for deprivation of property without procedural due process. Consequently, the defendants' motion for summary judgment on count III must be granted. Insofar as plaintiff Hontz has incorporated the identical claim in his amended complaint, summary judgment must be entered against him as well.
The final count of plaintiff James' amended complaint -- count IV -- states that defendants Dubin and Sherlock entered into a conspiracy with defendants Price and Berge to deprive plaintiff of his constitutional rights. This allegation states a claim for conspiracy under § 1983. The ability to bring a conspiracy claim under § 1983 against private citizens acting in concert with public officials is well-recognized. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Furthermore, a § 1983 conspiracy claim may be premised on a conspiracy to violate any constitutional right. In this respect, it differs from an action under § 1985(3), where plaintiff may recover only if his right to equal protection, privileges or immunities have been violated. Consequently, defendant Berge's argument that plaintiffs' conspiracy claim must fail because plaintiffs do not fall within a cognizable class is inapposite. Since this is the only argument advanced in support of defendant Berge's motion for summary judgment on count III of James' complaint, the motion is denied. Again, to the extent that plaintiff Hontz incorporates the conspiracy claim into his complaint, Berge's motion for summary judgment must be denied on this claim as well.
The court notes that while plaintiff Hontz' complaint repeats the allegations contained in counts I - IV of plaintiff James' complaint, it also contains additional allegations. The complaint alleges violations of state law and asserts that this court has pendent jurisdiction over such claims. Furthermore, the complaint alleges a number of substantive constitutional violations. Since the defendants have sought summary judgment only as to the claims premised on conspiracy and on deprivations of property and liberty without due process, the court expresses no view on the viability of Hontz' remaining claims.
The court also notes that pretrial discovery in this case has now been closed for several months. Accordingly, the court directs the parties that any additional pretrial motions should be filed no later than March 11, 1985 so as to be returnable on April 4, 1985. This will permit all remaining claims to proceed to trial promptly.
The attorney for plaintiff James shall submit an order consistent with this opinion.
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