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September 27, 2002


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



The following recitation of the relevant facts underlying Plaintiff's claims is drawn exclusively from Plaintiff's Amended Complaint. On August 4, 1999, New Jersey state police officers, Edward Verbeke and Sandor Lengyel, were dispatched to Tri-State Mulch, a business located in Hainesport, New Jersey, based on an allegedly "anonymous" and "unsubstantiated tip" that the business's owner, Joseph Garlanger, had been making threats of violence. (Compl. at ¶ 8.) Garlanger alleges that, "immediately" upon his return from making a delivery, Verbeke, Lengyel, and several unidentified officers grabbed him, pulled him from his truck, threw him to the ground, handcuffed him, placed their feet on his neck, and withdrew their service revolvers and pointed them directly at him. (Id. at ¶ 9.) Verbeke and Lengyel then allegedly proceeded to search his premises "without consent, a warrant or other legal basis." (Id.) According to Garlanger's complaint, the officers did not question him or "any of his known associates" or otherwise attempt to independently verify the information provided by the anonymous informant before taking action to subdue him and search his establishment. (Id. at ¶ 10.) Garlanger was then transported to the New Jersey State Police barracks in Bordentown, New Jersey, where he was allegedly "questioned against his will, harassed, yelled at, and berated." (Id. at ¶ 13.) He was ultimately charged with one count of making terroristic threats in violation of N.J.S.A. 2C:12-3 of the New Jersey Criminal Justice Code, (id. at ¶ 42)*fn1, and, lacking the funds needed to post bail, confined in the Burlington County jail pending trial. (Id. at ¶ 14.) Garlanger further alleges that, at some point thereafter, Verbeke and Lengyel contacted the mother of his son and advised her to obtain a restraining order against him, and that, as a result, he was "forced to engage in extended family court proceedings" to regain the same visitation and parental rights he had enjoyed with his son before defendants interfered with his personal family affairs. (Id. at ¶ 15.) Garlanger was ultimately acquitted on March 16, 2000, of all charges stemming from the August 4, 1999, incident at his place of business. (Id. at ¶ 43.)

On July 30, 2001, Garlganger instituted this action against the Superintendent of the New Jersey State Police and troopers Verbeke and Lengyel seeking compensatory and punitive damages, prospective injunctive relief, and attorney's fees and costs based on a panoply of alleged federal civil rights violations and related state constitutional and tort claims. Counts II, III, IV, V, VI, X, and XI of Plaintiff's Amended Complaint assert federal civil rights claims under 42 U.S.C. § 1983, 1985, and 1986, for unlawful arrest, false imprisonment, malicious prosecution, illegal strip search, negligent hiring, training, and supervision, and violations of Plaintiff's parental rights and rights to privacy, due process, and equal protection.*fn2 Counts VII, VIII, and IX assert common law state tort claims for false arrest, malicious prosecution, and intentional infliction of emotional distress and Count I alleges violations of rights protected under Article I, para. 1 (due process), 5 (equal protection), and 7 (prohibition against unreasonable searches and seizures) of the New Jersey state constitution. Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(6) on the following grounds: (1) Plaintiff's state law claims are barred as a consequence of Plaintiff's failure to comply with the notice provisions of the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:8-1, et. seq.; (2) the allegations in Plaintiff's complaint fail to sufficiently state a claim under 42 U.S.C. § 1985 and 1986; and (3) Defendant's Verbeke and Lengyel are entitled to qualified immunity from Plaintiff's Section 1983 claims for false arrest, false imprisonment, and malicious prosecution. Defendants also move, pursuant to Fed.R.Civ.P. 12(f), to strike Counts I, X, XI, on the grounds that the "exact same or similar claims" are asserted in Count II of Plaintiff's Amended Complaint. Finally, Defendant Carson Dunbar moves to dismiss Plaintiff's claims for injunctive relief against him, in his capacity as Superintendent of the New Jersey State Police, based on Plaintiff's failure to timely serve him with a summons and copy of the complaint in this matter as required by Fed.R.Civ.P. 4(m).


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." A court's inquiry into the legal sufficiency of a plaintiff's pleadings under this standard is necessarily very limited, as the issue to be decided "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [his] claims." Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court must accept as true all of the well-pleaded, material allegations contained in the complaint and any reasonable inferences that can be drawn therefrom. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). Dismissal of claims under 12(b)(6) should be granted "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. In examining the legal sufficiency of a litigant's complaint under Rule 12(b)(6), a court may not, as a general matter, give consideration to materials beyond the allegations contained in the pleadings, although matters of public record and exhibits attached to, "explicitly relied upon," or "integral to" the complaint may also be taken into account. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).


Defendants' seek dismissal of Plaintiff's state law claims for unlawful force (Count I), wrongful arrest (Counts I and VII), false imprisonment (Count I), malicious prosecution (Counts I and VIII), interference with parental rights (Count I), and intentional infliction of emotional distress (Count IX) based on Plaintiff's failure to comply with the notice of claim provisions of the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:8-1, et. seq.*fn3 The TCA, which was originally enacted by the New Jersey legislature in 1972, abrogated the traditional doctrine of sovereign immunity and established a uniform and comprehensive statutory scheme for adjudicating tort claims against public entities and their employees. See Feinberg v. State of New Jersey, 137 N.J. 126, 133 (1994) (observing that the TCA "modifies the doctrine of sovereign immunity and creates limited situations in which parties may assert tort claims against public entities."). In adopting this statutory framework, the state legislature sought "to remedy the haphazard, costly, and inconsistent approach to governmental liability" which had emerged from the body of judicial opinions preceding enactment of the legislation, Fuchilla v. Layman, 109 N.J. 319, 343 (1988) (Handler, J., concurring); Feinberg, 137 N.J. at 134 (citing S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 113 (1977)), and "to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers." Greenway Development Co., Inc. v. Borough of Paramus, 163 N.J. 546, 552 (2000) (citing N.J.S.A. 59:2-1 cmt.).

Consistent with the legislation's goal of restricting governmental liability in tort, the Act provides that, in order to maintain a tort claim against a public entity or public employee, a plaintiff must file a notice of claim with the appropriate public entity within 90 days of the accrual of a cause of action. See N.J.S.A. 59:8-8. A plaintiff who fails to file notice with the appropriate state agency within the 90-day period is "forever barred from recovering against [the] public entity or employee." Id. Further, while a plaintiff may be permitted to file a notice of claim after the 90-day period, provided he applies to the court for an extension within a year of the date when the claim accrued, see N.J.S.A. 59:8-9, "judicial discretion to extend the time for filing of the requisite notice does not survive the passage of one year following the accrual date of the claim." Hill v. Board of Educ. of Middletown Twp., 183 N.J. Super. 36, 39 (App.Div. 1982); see also Iaconianni v. New Jersey Turnpike Auth., 236 N.J. Super. 294, 298 (App.Div. 1989). The central purpose of these notice-of-claim provisions is two-fold: "(1) to expedite investigation with the hope of reaching nonjudicial settlement"; and (2) "to protect the public entity's access to current information about the incident giving rise to the claim." Greenway Development Co., Inc., 163 N.J. at 552 (internal quotations and citations omitted).

In the instant case, all of the alleged events which form the basis of Plaintiff's state tort claims occurred between August 4, 1999 (Compl. at ¶¶ 7, 8) and March 16, 2000 (Id. at ¶ 43). Thus, the 90-day statutory period within which Plaintiff was required to file the requisite notice of claim with the New Jersey State Police expired no later than June 16, 2000. In addition, the one year period in which Plaintiff could seek leave of the court to file a late notice of claim expired on March 16, 2001.

Plaintiff concedes that the state common law tort claims contained in Counts VII (false arrest), VIII (malicious prosecution), and IX (intentional infliction of emotional distress) of his Amended Complaint are subject to the TCA's notice requirements, see Epstein v. State, 311 N.J. Super. 350 (App.Div. 1998) (affirming the dismissal of malicious prosecution and infliction of emotional distress claims based on plaintiff's failure to demonstrate the "extraordinary circumstances" necessary to justify the filing of a late tort claims notice); Michaels v. State of New Jersey, 955 F. Supp. 315, 329 (D.N.J. 1996) (applying TCA's notice provisions to malicious prosecution claim); Pisano v. City of Michaels, 198 N.J. Super. 588, 590 (Law Div. 1984) (observing that while the TCA "does not immunize law enforcement officials from charges of false arrest and false imprisonment . . . claims asserting such wrongs must be presented to the [appropriate] public entities no later than the ninetieth day . . . after the accrual of the cause of action"), and does not dispute that he has neither filed a proper notice of claim with the New Jersey State Police, nor requested an extension of the period in which to do so. Plaintiff does not, therefore, oppose dismissal of these claims. (Pl.'s Opp. Br. at 3, n. 3).

Plaintiff does, however, oppose the dismissal of his claims in Count I for unlawful force, wrongful arrest, false imprisonment, and unlawful interference with parental rights to the extent that such claims allege "various tortious violations" of rights protected under Art. I, para. 1 (due process) and 7 (right to be free from unreasonable searches and seizures) of the New Jersey Constitution. (Pl.'s Br. at 5). While the New Jersey Supreme Court has not had occasion to specifically address the applicability of the TCA's notice requirements to "constitutional torts" of this particular variety, Plaintiff's position finds support in Justice Handler's concurring opinion in Fuchilla v. Layman, 109 N.J. 319 (1988), and the Supreme Court's more recent decision in Greenway Development Co., Inc. v. Borough of Paramus, 163 N.J. 546 (2000). In Fuchilla, the Court considered the applicability of the TCA's notice provisions to discrimination claims brought pursuant to the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq. Fuchilla, a former employee of the University of Medicine and Dentistry of New Jersey instituted a sexual harassment suit against the university and its Board of Trustees under both the Civil Rights Act, 42 U.S.C. § 1983, and the New Jersey LAD. The Appellate Division reversed a ruling by the trial court dismissing Fuchilla's LAD claim based on her failure to satisfy the notice provisions of the TCA and the Supreme Court affirmed holding, based on a "reading of the history, purpose, and provisions of the [TCA and the LAD] . . . that the legislature did not intend that claims of discrimination be subject to the notice requirements of the [Tort Claims Act]." Fuchilla, 109 N.J. at 336. In so holding, the Court overruled a decision by the Chancery Division, Lloyd v. Borough of Stone Harbor, 179 N.J. Super. 496, 512 (1981), in which that court had concluded that a sexual discrimination claim seeking "damages caused by a violation of constitutional rights" afforded by the New Jersey Constitution was subject to the notice provisions of the Tort Claims Act. See Fuchilla, 109 N.J. at 333; see also, Greenway Development Co., Inc., 163 N.J. at 554 (observing that the decision in Lloyd was "effectively overruled" by the Court's decision in Fuchilla and cannot be relied upon "for the proposition that the notice of claim provision of the TCA applies to `constitutional torts.'").

In a concurring opinion, Justice Handler noted that the TCA, by its terms, is primarily concerned with civil actions seeking damages for "ordinary negligence" and other "tortious conduct involving fault in the sense of a want of reasonable care," Fuchilla, 109 N.J. at 339, and "disavows any remedial purpose to vindicate societal interests or to rectify public or governmental misconduct to protect any individual constitutional interest or civil right." Id. at 344. The enactment of the TCA, he recounted, was essentially a legislative response to the Court's abrogation of the State's sovereign immunity in Willis v. Department of Conservation and Econ. Dev., 55 N.J. 534 (1970). See id. at 334; see also Greenway Development Co., 163 N.J. at 556-57:

In Willis, the Court reviewed previous judicial limitations on the use of sovereign immunity as a defense. It is instructive to note that all the cases cited involved claims of ordinary negligence and most of the others involved allegations that governmental negligence created conditions that resulted in death or injury. Other cases involved situations where negligent supervision on the part of government officials led to the injury of third persons. These cases represent not only the background against which the Legislature acted when it drafted the Act, but many of them also stood for ...

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