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May 26, 1999


The opinion of the court was delivered by: Barry, District Judge.


Assistant prosecutor Sara Sencer-McArdle (improperly pled as "Sara Spencer-McArdle") ("Sencer-McArdle"), Essex County Prosecutor's Office ("ECPO") investigators George McGrath ("McGrath") and Richard Mastroangelo ("Mastroangelo") (collectively the "county investigators"), and Division of Youth and Family Services investigator Louis Fonolleras ("Fonolleras"), all move for summary judgment on the complaint of plaintiff Margaret Kelly Michaels ("Michaels") on the ground of absolute or qualified immunity. Defendant and third party plaintiff psychologist Susan Esquilin (improperly pled as "Susan Esquillan") ("Esquilin"), also moves to dismiss Michaels' complaint for failure to state a claim.*fn1 The court has reviewed the submissions of the parties without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons discussed below, each of the defendants' motions will be granted.


The facts of this case are, by now, well known. Michaels, after being convicted of numerous counts of child sexual abuse, spent five years in prison before being released when the Appellate Division reversed her conviction and remanded for a retrial. The Supreme Court, affirmed, but the charges against Michaels were subsequently dismissed. She comes before this court seeking damages for being subjected to an allegedly unconstitutional investigation at the hands of defendants. This court will not attempt to recap every nuance of the case's history, and that history is well documented in the various opinions which have preceded this opinion.*fn2 Only what is relevant to the pending motions will be restated.

On April 26, 1985, upon being examined by his pediatrician, one of the children (M.P.) for whom Michaels cared at the Wee Care Nursery in Maplewood, New Jersey, made an allegation of sexual abuse against her. Four days later, that allegation was referred to the Institutional Abuse Investigation Unit of the Division of Youth and Family Services ("DYFS"). Schiripo Cert., Exh. A, Fonolleras Dep. I at 71. Fonolleras, the investigator assigned to the DYFS "investigation, contacted ECPO investigator Mastrangelo on May 1, 1985, as required by law, and Mastrangelo brought the matter to the attention of Sencer-McArdle, the director of the Child Abuse Unit of the ECPO. Sencer-McArdle Cert. ¶ 5.

Within a few days, four more children (E.N., S.R., C.C. and M.R.) came forward with allegations of abuse at the hands of Michaels. Id. ¶ 6. Sencer-McArdle interviewed all five children, in early May, after each child was initially interviewed by a county investigator. id. ¶ 6-8. Esquilin, after being contacted by either the ECPO or DYFS by virtue of her position at United Hospital, conducted one interview and attended another. Esquilin Dep. at 61-63. Fonolleras and others conducted several more interviews of the children. Fonolleras Dep. at 87. On May 6, 1985, Michaels took a polygraph examination, the results of which were inconclusive.

Sencer-McArdle convened a grand jury on May 24, 1985 based on the allegations of three of the five children she interviewed (M.P., S.R. and C.C.). Sencer-McArdle Cert. ¶ 9. On June 6, 1985, the first of three indictments against Michaels was returned. Id. ¶ 8. Michaels was arrested at her East Orange apartment on June 12, 1985. Mannion Cert., Exh. A, McGrath Dep. II at 87.

Subsequent to the first indictment, the county investigators were notified by DYFS that there were other children claiming to have been sexually abused by Michaels. Sencer-McArdle Cert. ¶ 10. Interviews of these children by the county investigators followed, but Sencer-McArdle did not participate. Id. Instead, Sencer-McArdle interviewed parents and teachers, reviewed transcripts the county investigators had made of their interviews with the children (id.), and advised the investigators as to how to handle the interviews. Santore Cert., Exh. H, Noonan Dep. at 29-31. When Sencer-McArdle thereafter decided to present the newly gathered information to a second grand jury, she interviewed the latest group of children. A one hundred and seventy four count indictment involving approximately twenty children was returned by the second grand jury on July 30, 1985. Sencer-McArdle Cert. ¶ 11.

After the second indictment was returned, the ECPO was contacted regarding additional allegations of abuse of yet other children, and those children were interviewed by the investigators. Id. Alter those initial interviews, Sencer-McArdle interviewed the children in preparation for a third grand jury, which returned the final fifty-five count indictment against Michaels on November 21, 1985. Id.

Trial against Michaels commenced on June 22, 1987 in the Superior Court of New Jersey on the one hundred and sixty-three counts returned by the three grand juries.*fn3 Assistant prosecutors Sencer-McArdle and Glenn Goldberg led the prosecution. Esquilin and Fonolleras both testified for the prosecution at the trial.

In April of 1988, Michaels was convicted of 115 counts of aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats. See Michaels, 136 N.J. at 305-06, 642 A.2d 1372. The Appellate Division reversed the convictions on March 26, 1993, and remanded for a new trial. See Michaels, 264 N.J.Super. at 629-32, 625 A.2d 489. The Appellate Division directed that a pretrial hearing would be required to ascertain the reliability of the children's statements and testimony should the prosecution decide to retry the case (id. at 631-32, 625 A.2d 489), and the Supreme Court of New Jersey agreed. See Michaels, 136 N.J. at 324, 642 A.2d 1372 (agreeing with the Appellate Division on the need for a taint hearing, stating that "the interrogations . . . were improper and there is a substantial likelihood that the evidence derived from them is unreliable"). On December 1, 1994, the ECPO formally dismissed all criminal charges against Michaels. Compl., First Count, ¶ 25.

On June 13, 1996, Michaels filed a six-count complaint against a multitude of defendants in the Superior Court of New Jersey, Law Division, Essex County. Defendants removed the case to this court on July 25, 1996. All that remains of the complaint, however, are Michaels' malicious prosecution and Section 1983 claims against Sencer-McArdle, McGrath, Mastrangelo, Fonolleras and Esquilin.*fn4 Discovery on the issue of immunity having concluded, these defendants now move for dismissal of the claims against them.


A.  Summary Judgment Standard

Summary judgment may be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, all facts and reasonable inferences drawn from the evidence are viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the initial burden of pointing out the absence of a genuine issue as to any material fact, but summary judgment is only granted against a party who fails to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B.  Michaels' Claim under 42 U.S.C. § 1983

In support of her claim pursuant to 42 U.S.C. § 1983, Michaels alleges that each defendant violated her Fourteenth Amendment rights in conducting the investigation.*fn5 Specifically, Michaels contends that the defendants: one, improperly suggested false allegations to the children and thereby destroyed their capacity to remember or recall; two, brainwashed the children with the aforementioned false suggestions; three, distorted the children's memories with suggestive and leading questions; four, used selective reinforcement via threats, coercion and bribes; five, failed to record interviews with the children and destroyed or intentionally lost tapes of interviews; and six, used gross and egregious interrogation techniques which included threatening and suggestive methods, in addition to coaching the children as to their interviews prior to taping. "Amended Compl., ¶ 27(a)-(f).*fn6

A Section 1983 claim must be based on an alleged constitutional, or federal statutory, violation.*fn7 If a defendant enjoys either absolute or qualified immunity, however, the action should be dismissed at the outset. Immunity is not simply a means of avoiding trial but, rather, a method of preventing a party from having to be subjected to litigation at all. See Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). If at all possible, therefrom, immunity issues should be resolved by the court at an early stage, as a matter of law. See Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).

1.  Absolute immunity

Absolute immunity exists for those officers who perform judicial or quasi-judicial functions. See Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and presenting the State's case" insofar as that conduct is "intimately associated with the judicial phase of the criminal process." See id. at 430-431, 96 S.Ct. 984. Other officers, such as investigators, enjoy qualified immunity for their discretionary functions. See Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Whether an actor enjoys absolute or qualified immunity is based on the function he or she performs, not the title he or she holds. See Jean v. Collins, 155 F.3d 701, 707 (4th Cir. 1998) ("[I]mmunity is tied to the nature of the function performed and not to the identity of the defendant performing that function []"), cert. petition filed, 67 USLW 3409 (Dec. 16, 1998). In this case, the only remaining defendant eligible for absolute immunity is assistant prosecutor Sencer-McArdle, as none of the others performed any judicial or quasi-judicial functions.

A prosecutor generally enjoys absolute immunity for his or her quasi-judicial functions, or, to put it another way, when he or she is acting as an advocate for the state. Examples of such functions include: deciding whether or not to seek an indictment based on evidence gathered by law enforcement officers, see Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); preparing for grand jury or trial proceedings, see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); and presenting evidence at a probable cause hearing. See Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A prosecutor does not enjoy absolute immunity, however, for functions deemed investigative in nature, such as the ...

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