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CARTER v. GEORGEVICH

January 5, 2000

CORNELIUS CARTER, PLAINTIFF,
V.
STEVEN GEORGEVICH, DEFENDANT.



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

OPINION

Defendant Steven Georgevich moves to dismiss the plaintiff Cornelius Carter's complaint. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court decides this motion without oral argument. For the reasons discussed below, the motion is denied.

Background

In 1991, Steven Georgevich, a police officer in Bergen County, pulled over plaintiff for driving erratically on the highway. As the car slowed, and when defendant later questioned plaintiff at the rear of the car, Officer Georgevich observed the front seat passenger making what he describes as "furtive movements,"as though trying to retrieve or conceal something. Georgevich removed the two passengers from the car. After patting down all three men (the driver and the passengers), he ordered them to sit on the hood of the car so that he could search the car for weapons.

Georgevich found a jacket on the front seat of the car which he patted down and determined did not contain any weapons. Underneath the jacket, he discovered a closed brown paper bag"compressed into a spherical shape approximately six inches in diameter... hard and weigh[ing] approximately half a pound."Defendant opened the bag and discovered 7.5 ounces of cocaine.

Plaintiff was arrested and later convicted in New Jersey Superior Court for possession of cocaine and possession with intent to distribute five or more ounces of cocaine. He appealed; in December, 1994, the Appellate Division overturned the conviction on the ground that the warrantless search of the bag was unconstitutional and the evidence improperly admitted.

Plaintiff brought an action alleging (1) illegal search and seizure, false arrest and malicious prosecution by Georgevich in violation of 42 U.S.C. § 1983, (2) assault and battery against Georgevich and Bergen County, (3) false imprisonment against Georgevich and Bergen County, (4) malicious prosecution against Georgevich and Bergen County, and (5) municipal liability against Bergen County. Defendants moved for summary judgment. The Court granted defendants' motion on claims two, three, four and five in a letter order dated May 18, 1998 ("May 1998 Letter Opinion)*fn1 The Court also concluded that Officer Georgevich was not protected by qualified immunity enjoyed by police officers in the performance of their official duties and, thus, did not grant summary judgment on count one, the § 1983 claim.

By agreement of all parties at a Pre-Trial conference held December 16, 1998, the case was administratively closed pending plaintiffs release from prison on an unrelated arrest. On May 3, 1999, plaintiff moved to re-open the case. The case was formally re-opened on June 16, 1999. Magistrate Judge Pisano denied plaintiffs request for additional discovery on the same date. On July 30, 1999, this Court received the defendant's motion to dismiss and plaintiffs opposition papers (filed pursuant to Appendix N).

Defendant argues that a recent case, Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), precludes plaintiffs suit for damages stemming from alleged violations of his Fourth Amendment rights by Officer Georgevich. In response, plaintiff argues that the motion is "baseless and . . . an obvious attempt to wear down a civil rights plaintiff."plaintiff also asserts that the motion should be considered as a motion for summary judgment rather than as a motion to dismiss, that the defendant seeks to relitigate issues already decided in the May 1998 Letter Opinion, and that the motion should be considered untimely. Defendant counters that the motion may be treated as either a motion for summary judgment or a motion to dismiss and that the motion does not relitigate the issues decided in the earlier summary judgment motion because the May 1998 Letter Opinion only addressed issues of qualified immunity under § 1983. Defendant also asserts that the motion should be treated as timely because it was prompted by this recent decision of the Second Circuit which addressed the right of a § 1983 plaintiff to collect damages for his conviction and incarceration because of an alleged Fourth Amendment violation by an arresting officer.

The Court will treat defendant's motion as a motion to dismiss plaintiffs claim for damages stemming from his conviction and incarceration due to an alleged Fourth Amendment violation by defendant. Defendant's motion to dismiss is denied.

Legal Standard

Under the Rules of Civil Procedure, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Prevard v. Fauver, 47 F. Supp.2d 539, 542 (D.N.J. 1999).

On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the court is required to accept as true all allegations in the complaint, and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the nonmoving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the claimant can prove any set of facts consistent with his/her allegations that will entitle him/her to relief, not whether that person will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). While a court will accept well-plead allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, ...


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