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SIMMERMAN v. CORINO

October 23, 1992

NANCY SIMMERMAN, HERBERT SIMMERMAN, and PAUL SIMMERMAN, each individually and trading as the WEE CARE CENTER and/or SERENDIPITY PRE-SCHOOL AND CHILD CARE CENTER, Plaintiffs, -vs- JOHN CORINO, Cape May County Prosecutor, ROBERT G. WELLS, First Assistant Prosecutor of Cape May County, ANTONIA COWAN, Assistant Prosecutor of Cape May County, MARIE HAYES, Investigator for Cape May County Prosecutor, OFFICE OF THE PROSECUTOR OF CAPE MAY COUNTY, BETTY VEACH and SAMUEL VEACH, Each individually and as parents and natural guardians for CHRISTOPHER SAMUEL VEACH, a minor, VERONICA LEIDER and RONALD LEIDER, Each individually and as parents and natural guardians of RONALD J. "RONNIE" LEIDER, a minor, DICK CRANE, Bureau of Licensing of the Division of Youth and Family Services, SUSAN MANION, Institutional Abuse Unit Administrator, DYFS BUREAU OF LICENSING, DYFS INSTITUTIONAL ABUSE INVESTIGATION UNIT, DIVISION OF YOUTH AND FAMILY SERVICES (DYFS), DEPARTMENT OF HUMAN SERVICES, THOMAS FLANAGAN, Investigator for State Department of Criminal Justice, STATE TROOPER EUGENE PETRELLA DETECTIVE DAVID KENNA, COLONEL JUSTIN J. DINTINO, New Jersey State Police, OFFICER JOHN DOE #1, OFFICER JOHN DOE #2, OFFICER JOHN DOE #3, OFFICER JOHN DOE #4, OFFICER JOHN DOE #5, NEW JERSEY STATE POLICE, DR. ANNE BURGESS, PAMELA KANE, DR. MARTIN FINKEL, RICHARD ROES NOS. 1 through 25, and STATE OF NEW JERSEY, Defendants.

IRENAS


The opinion of the court was delivered by: JOSEPH E. IRENAS

IRENAS, District Judge:

 Presently before the court are motions for summary judgment and/or dismissal by the "State Defendants," *fn1" by the "County Defendants," *fn2" by defendants Leider, and by defendants Veach. *fn3"

 I. BACKGROUND

 In December of 1989, the New Jersey State Police and the Cape May County Prosecutor's office commenced an investigation of the Wee Care day care center, which was owned and operated by the plaintiffs, Nancy, Herbert, and Paul Simmerman.

 The investigations were triggered when Mrs. Betty Veach, a parent of one of the children attending the Wee Care Center, reported to a State Police Trooper that she suspected her son Christopher was being sexually abused by the Simmermans. The trooper relayed this information to a State Police detective. After personally interviewing Betty and Christopher Veach, the detective obtained a warrant and participated in a search of plaintiffs' home and business.

 The investigation continued from December, 1989, through April, 1990. During that time, more than thirty children who attended the Wee Care Center were interviewed, along with their parents. *fn4" DYFS officials also consulted medical experts, who analyzed the children's behavior for evidence of abuse.

 On April 5, 1990, a grand jury indicted the Simmermans on charges that they sexually abused children at the Wee Care Center. An earlier grand jury had returned no bill. *fn5"

 The Simmermans' criminal trial took place in January, 1991. Among the expert witnesses called by the prosecution were Dr. Anne Burgess, a nurse and psychologist; Pamela Kane, a psychologist; and Dr. Martin Finkel, a physician. At the conclusion of the trial, the Simmermans were acquitted. *fn6"

 On January 16, 1992, plaintiffs filed this suit. The Complaint named as defendants sixteen named individuals, thirty unnamed individuals, and six entities. To summarize, the defendants are the Office of the Prosecutor of Cape May County and individuals working in the prosecutor's office; the New Jersey State Police, its commander, and various State Police officers; the New Jersey Department of Human Services, DYFS, DYFS subdivisions, and individuals employed by those entities; three of the prosecution's expert witnesses; and the State of New Jersey.

 The Complaint contains seventeen counts alleging both federal and state claims. The federal counts include Count I, a civil rights act claim under 42 U.S.C. § 1983; Count II, Malicious Prosecution under 42 U.S.C. § 1983; and Count IV, RICO Civil Fraud and Conspiracy. The remaining fourteen counts include state law claims for maliciously obtaining a grand jury indictment, defamation, infliction of emotional distress, expert fraud, and negligence.

 The Complaint generally alleges that all of the defendants pursued the investigation and prosecution of the Simmermans in bad faith, acting solely out of malice toward the plaintiffs and from a desire to gain personal recognition for participating in a high-profile child sexual abuse prosecution.

 II. RULE 8 PLEADING REQUIREMENTS

 Although the defendants have not moved to strike the Complaint under Fed. R. Civ. P. 8(a), the court feels compelled to comment on plaintiffs' flagrant, and almost boastful, *fn7" noncompliance with that Rule.

 For example, in one assault on the prosecutors' motives for trying the Simmermans, the Complaint states that the prosecutors acted "for reasons of personal glorification, self-aggrandizement, high publicity, ego and stubbornness." Count IV, P 37. Another unhelpful allegation reads,

 It was a part of the scheme to ruin the Plaintiffs that Defendants . . . would and did agree and conspired together and with the others to devise and participate in a plan of deceit and deception, whereby they organized a campaign of public opposition to the Plaintiffs' business and day care program, and abused their positions as citizens and law enforcement officers to do so; they would and did abuse the discretion granted to them by the State Police and the Prosecutor's Office; and they would and did use false and fraudulent pretenses, misrepresentations, and unfounded or insufficient evidence calculated to deceive law enforcement agencies, state licensure and certification officials, local media and members of the public to turn against the Plaintiffs, all so as to unlawfully, intentionally and willfully, and with the intent to harm, that is, knowingly and with the specific intent to falsify claims, deceive officials, abuse court process, and maliciously prosecute the Plaintiffs.

 Count IV, P 24.

 Considering its bulk, the Complaint is remarkably unencumbered by specific factual allegations. Admittedly, Rule 8(a) was designed to eliminate the more technical common-law pleading requirements. See, e.g., Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 66-67 (3d Cir. 1986). However, the Rule's concept of notice pleading was not intended to do away with factual pleading altogether.

 The Complaint is fairly specific in its allegations concerning the animosity between the complaining parent, Betty Veach, and Nancy Simmerman. It also contains specific allegations of how Mrs. Veach initiated the investigation by calling New Jersey State Trooper Petrella.

 However, at the heart of this lawsuit is the contention that the investigation itself, and the subsequent prosecution of the plaintiffs, were unlawful. At the point that pertinent factual allegations should begin, the Complaint seems to float free of its moorings and drift into a swirl of dramatic and conclusory allegations.

 One representative allegation states that sometime between December 1989 and "spring 1990," "Plaintiffs were arrested, investigated, interrogated, invaded in their home and private affairs and subjected to widespread media coverage orchestrated by and/or facilitated by the New Jersey State Defendants and the Police/Prosecutor Defendants." Complaint, Count I, P 6. This court cannot locate anywhere within the Complaint an allegation of the date and time of any of those activities, the names of any specific individual who performed any of those actions, or any clear allegation as to why these actions were unlawful.

 In sum, contrary to Rule 8's direction to be short and plain, this Complaint is long and confusing. Not only has this pleading violated the Rule, but it has also forced both the defendants and this court to waste much valuable time in attempts to decipher its meaning.

 III. MOTIONS FOR SUMMARY JUDGMENT

 A. Standard for Summary Judgment

 At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Id. at 249. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id. Although the moving party bears the initial burden of informing the district court of the basis for its motion, there is no requirement in the Rule that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323.

 Of particular interest to this case, the Supreme Court has stated that "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)(citation omitted) (internal quotations omitted). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted).

 Furthermore, "if the factual context renders [a] claim implausible . . . [the nonmoving party] must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Matsushita, 475 U.S. at 587.

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Finally, summary judgment should be granted unless a dispute over a material fact is genuine, which the Court has defined as such that "a reasonable jury could return a verdict for the nonmoving party." Id.

 B. Eleventh Amendment Immunity

 Counts I and II of the Complaint allege violations of 42 U.S.C. § 1983 by the state defendants. The State defendants have moved for summary judgment on all claims against the State entities and against State officials in their official capacities on the ground that such suits are barred by the Eleventh Amendment.

 Section 1983 creates liability for any "person" who, under color of state law, deprives another person of a constitutional right. 42 U.S.C. § 1983. In Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), the Supreme Court considered whether a State is a "person" that can be sued under this section.

 The Court could not have been more clear in its holding that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." *fn8" Will, 491 U.S. at 71. This conclusion was based on both the Eleventh Amendment bar of suits against States, and on the Court's statutory interpretation of Section 1983 itself.

 Plaintiffs have argued that the § 1983 claims against the New Jersey State Police and DYFS are nevertheless viable because neither entity should be considered part of the State for Eleventh Amendment purposes. Plaintiffs have proposed a "functional analysis," see Plaintiffs' Brief at 16, to reach this result.

 Plaintiffs' attempt to classify the New Jersey State Police and DYFS as other than state agencies utterly disregards applicable law. As summarized in Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989), cert. denied, 493 U.S. 850, 107 L. Ed. 2d 107, 110 S. Ct. 148 (1989), the three relevant questions for Eleventh Amendment immunity are "(1) Whether the money that would pay 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." Id. at 659. Of these factors, the first is the most important. Id. See also Kovats v. Rutgers, State University, 822 F.2d 1303, 1307 (3d Cir. 1987); Blake v. Kline, 612 F.2d 718, 722 (3d Cir. 1979), cert. denied, 447 U.S. 921, 65 L. Ed. 2d 1112, 100 S. Ct. 3011 (1980); Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-52 (3d Cir. 1969), cert. denied, 397 U.S. 948, 25 L. Ed. 2d 128, 90 S. Ct. 967 (1970).

 Although this court does not have before it any financial information regarding funding of the State Police and DYFS, it seems beyond dispute that both entities are arms of the State. *fn9" By statute, the State police "shall be subject to the call of the Governor. They shall be peace officers of the State . . ." N.J. Stat. Ann. § 53:2-1 (West 1986 & Supp. 1992). The Division of Youth and Family Services is likewise ...


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