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LINDES v. SUTTER

November 21, 1985

RICHARD LINDES, Plaintiff,
v.
EDWARD SUTTER, individually and as an agent of the DEFENDANT, COUNTY OF MONMOUTH; ROBERT WAINEN, individually and as an agent of the DEFENDANT COUNTY OF MONMOUTH; COUNTY OF MONMOUTH, a municipal corporation; JAMES R. FELTON, individually and as an agent of DEFENDANT FOODARAMA SUPERMARKETS, INC. JOHN McATEER, individually and as an agent of DEFENDANT FOODARAMA SUPERMARKETS, INC.; RICHARD SAKER, individually and as an agent of the DEFENDANT FOODARAMA SUPERMARKETS, INC.; JOSEPH SAKER, individually and as an agent of the DEFENDANT FOODARAMA SUPERMARKETS, INC.; FOODARAMA SUPERMARKETS, INC., a New Jersey corporation; MICHAEL KANTOR, individually and as an agent of DEFENDANT RETAIL STORE EMPLOYEES UNION, LOCAL 1262; GEORGE DUBOSE, individually and as an agent of DEFENDANT RETAIL STORE EMPLOYEES UNION, LOCAL 1262; SAM KINSORA, individually and as an agent of DEFENDANT RETAIL STORE EMPLOYEES UNION LOCAL 1262; RETAIL STORE EMPLOYEE UNION, LOCAL 1262; and JOHN DOE(S), Defendants



The opinion of the court was delivered by: RODRIGUEZ

 In this action, brought pursuant to 42 U.S.C. §§ 1983, *fn1" 1985 and various state law tort theories, plaintiff Richard Lindes sues (1) two detectives in the Monmouth County Prosecutor's Office and the County of Monmouth ("county defendants"); (2) several employees and corporate officers of Foodarama Supermarkets, Inc., as well as the store itself ("store defendants"); and (3) Local 1262 of the Retail Store Employees Union and two of its officers ("union defendants") for damages allegedly sustained by him as the result of a criminal investigation and grand jury indictment which resulted in the termination of his employment with Foodarama. The matter is before the Court on motions for summary judgment by the store and county defendants. All claims against the union defendants were dismissed with prejudice by Order of the Hon. John W. Bissell, U.S.D.J., filed March 13, 1985.

 The following facts are undisputed. Plaintiff was an employee of Foodarama Supermarkets between March 1965 and February 1982. As the result of investigations into a shortbilling scheme at Foodarama conducted by Foodarama and the Monmouth County Prosecutor's Office, plaintiff was terminated from his employment with Foodarama in February of 1982 and was indicted on April 30, 1982 by a Monmouth County Grand Jury. Plaintiff subsequently was admitted into a Pretrial Intervention Program pursuant to N.J.S.A. 2C:43-12, et seq. (West 1982). After completion of that program in accordance with the provisions of that statute, the indictment against plaintiff was dismissed on January 20, 1984.

 In his complaint, plaintiff alleges that the store and county defendants willfully, intentionally and maliciously pursued the criminal investigation against him. He alleges that as a result of their tortious acts, he was wrongfully discharged from his employment and improperly and illegally indicted by the grand jury. Plaintiff's only federal claims are a § 1983 claim of intentional deprivation of constitutional rights under color of state law and a § 1985(2) claim of conspiracy. His state claims originally included defamation, breach of the duty of fair representation, recklessness and negligence, and malicious prosecution. However, all of these state tort claims, except the claim of malicious prosecution, were dismissed voluntarily. *fn2"

 Defendants argue in support of their motions for summary judgment that plaintiff's claim of malicious prosecution should be dismissed for failure to state a claim for which relief can be granted because plaintiff cannot establish the requisite element of a termination of the criminal prosecution in his favor. They argue that his federal claims, which are based on similar allegations of malicious prosecution, also should be dismissed for the same reason, or, in the alternative, are time barred by applying the appropriate limitations period for the most analogous state claims. *fn3"

 For the reasons set forth below, the remaining counts of plaintiff's complaint are dismissed with prejudice.

 DISCUSSION

 Summary judgment will only be granted where there are no genuine issues of material fact and when the movant is entitled to summary judgment as a matter of law. The Court in deciding a motion for summary judgment must view the evidence in the light most favorable to the non-moving party. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). The movant bears the burden of establishing the absence of any genuine issues of material fact. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983); Scott v. Plante, 532 F.2d 939, 945 (3d Cir. 1976). Here defendants contend that they are entitled to judgment as a matter of law. This Court agrees.

 The § 1983 Claim and State Claim of Malicious Prosecution

 In Count I of plaintiff's complaint, he alleges that the store and county defendants, without probable cause or factual support, willfully, intentionally and maliciously instituted and pursued a criminal investigation into his conduct and wrongfully secured an indictment against him. He further alleges that contemporaneous with the indictment he was terminated from his employment. He contends that all of these acts were done under color of state law to deprive him of the following constitutional rights guaranteed by the First and Fourteenth Amendments:

 
A. The right to property and the right to be employed and the pursuit of one's vocation; and
 
B. The right of liberty and freedom from unlawful arrest; unlawful presentation of tainted evidence to a Grand Jury; and
 
C. Freedom from coercion and intimidation; and
 
D. A fair presentation of competent and truthful evidence fairly obtained which is competently ...

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