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