United States District Court, D. New Jersey
August 23, 2005.
ANTHONY MASSARI Plaintiff
SALEM COUNTY PROSECUTOR'S OFFICE Defendant.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter comes before the Court on the Motion for Summary
Judgment of Defendant Salem County Prosecutors Office ("SCPO"),
John Doe Investigators (1-5), and John Doe Prosecutors (1-5)
pursuant to Fed.R.Civ.P. 56.*fn1 Plaintiff Anthony
Massari asserts claims for violation of his Fourth and Fourteenth Amendment rights pursuant
to 42 U.S.C. § 1983, as well as a common law claim of
"negligence." This Court has jurisdiction over Plaintiff's claims
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. For the
reasons discussed herein, the Court grants the Defendants' Motion
in its entirety.
This case arises out of the May 2, 2001 Indictment of Plaintiff
by the Salem County Grand Jury on two counts of third degree
theft in violation of N.J.S.A. 2C:20-3. Exh. B to Plaintiff's
Motion for Summary Judgment ("Pl. Exh."). The Indictment charged
Mr. Massari with unlawfully taking or exercising unlawful control
over the moveable property of T.E. Warren, Incorporated ("Warren
Inc."), with a value of more than $500.00, on or about February
2, 2001, and February 20, 2001. Id. at 4:5-23. Plaintiff filed
the instant Complaint on May 2, 2003, claiming that SCPO falsely
and maliciously prosecuted Plaintiff even though it knew or
should have known that there was no probable cause to indict him,
and that neither he nor his counsel were made aware of the grand
jury proceedings nor given the opportunity to testify.
Warren, Inc., a crane rental business, was owned by Mr.
Threaston E. Warren, Jr. Plaintiff entered into an Asset Purchase
Agreement ("Agreement") with Warren on April 7, 2000. Def. Exh.
A1. Pursuant to the Agreement, Plaintiff paid $500,000 for real
property in Pennsville Township owned by Mr. Warren, and some of
the equipment that was on the property. Id. at ¶ 1.2; ¶ 3.1.
Paragraph 13.1 of the Agreement provides that the Agreement and
the other instruments executed by the parties in connection with
the transaction "constitute the sole understanding of the parties
with respect to the subject matter hereof," and that "[n]o amendment, modification, or alteration of the terms or provisions
of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto." Id. at ¶
13.1. Despite this provision, Warren claims that there was a
subsequent "Gentleman's Agreement" which stipulated that Warren
could leave some of his equipment on the property for up to a
year. Pl. Exh. B at 10:5-19. In addition, Warren claims that he
agreed to rent some of this non-purchased equipment remaining on
the property to Plaintiff at Plaintiff's request. Id. at
14:6-7. Warren retained possession of a parcel of land
immediately adjacent to the property that he sold to Plaintiff,
and therefore was able to observe activities taking place on
Plaintiff's land. Pl. Exh. E at 6:10-13; 14:20-22.
In the months following the Agreement, Warren began removing
some of his property. Id. at 11:18-19. Warren claimed, however,
that Plaintiff ceased to allow Warren access to the property to
remove the rest of his equipment beginning in November 2000.
Id. at 35:12-18. Warren believed that Plaintiff was stealing
the equipment that Warren was not allowed to remove, and was
selling it for scrap. Warren testified before the Grand Jury that
on February 2, 2001, approximately 20-25 aluminum vaporizers,
worth over $5,000.00, had been removed from Plaintiff's property,
and was "concerned" that they were sold for scrap. Id. at
Shortly thereafter, Warren observed a dumpster on Massari's
property which allegedly contained crane parts owned by Warren.
Id. at 21:3-10. On Februrary 20, 2001, Warren observed the
dumpster being hauled off the property. He immediately contacted
Charles Miller, Chief of Detectives at the Salem County
Prosecutor's Office, to report that employees of Plaintiff were
loading his property into a dumpster, and that he wanted to sign
complaints for these activities. Pl. Exh. D at 10:3-19. Miller
testified that he advised Warren to contact the Pennsville Police Department, but did not recall contacting the
Police Department himself. Id. 10:22-11:2; 13:1; 14:11-12.
After calling Miller, Warren called the Pennsville Police
Department and reported that he had flagged down a truck hauling
a dumpster that contained property that he believed had been
stolen from him, and Officer Greg Acton was sent to investigate.
Pl. Exh. B at 22:21-23; Pl. Exh. C at 19:3-15. Acton testified
that Miller also had called the Pennsville Police Department to
respond to the scene. Id. at 23:5-11. Acton testified that soon
after he arrived, Detective Cummings from the Pennsville Police
Department also came to the scene, as well as Chief Miller. Id.
at 22:17-21. Miller testified at his deposition that he went to
the location where the truck was stopped, approximately a mile
and a half from the properties owned by Warren and Massari. Id.
at 30:24-31:6. Miller did not recall whether he stopped by out of
curiosity, or whether he "stumble[d]" upon it, but did not come
to the Massari property to conduct an investigation, and took no
official action at the scene. Id. at 11:5-17; 12:12-13:1. The
investigation was under the control of the Pennsville Police
Department at all times, and Miller was on the scene "for two
minutes at the most." Id. at 21:20-21; Pl. Exh. H at 72:17-18.
Acton testified that although he believed that the dispute
constituted a civil matter, and would therefore not sign a
criminal complaint himself, Warren was "adamant" about signing a
complaint. Id. at 32:8-16; 34:8-21. Acton therefore escorted
Warren to the clerk's office, where Warren signed complaints
relating to the equipment in the dumpster and the February 2,
2001 incident. Id. at 34:20-21; Pl. Exh. B at 23:6-7. Acton
served the Complaint on Massari that day. Pl. Exh. C at 38:20.
Mr. Massari came to the police station, where he was
fingerprinted and photographed because the charges were
indictable. Id. at 40:5-6. At that time, he told Massari that the complaint would be forwarded to the SCPO for
presentation to the Grand Jury, and that he should contact his
attorney. Id. at 40:8-20. Miller became aware of the complaints
being filed when Massari was arrested. Id. at 22:23-23:3.
Jon Reilly, an assistant prosecutor, presented the case against
Massari to a Grand Jury on May 2, 2001. Pl. Exh A; Pl. Exh. F at
9:9-10. Reilly was given the file on the morning that he
presented the case to the Grand Jury. Pl. Exh. F at 10:4-5. The
case had been screened by the First Assistant Prosecutor, William
Brennan, before being handed to Mr. Reilly. Brennan testified
that in a case in which the alleged victim, rather than a police
officer, is the one who files the complaint, it would still be
sufficient to present a case to the Grand Jury based only upon
the police report and the testimony of the police officer and the
alleged victim. Pl. Exh. H. at 29:19-20. However, it is SCPO
protocol that if an attorney indicates that his or her client
wants to testify in front of the Grand Jury, a note is made in
the file to have the defendant come in and testify. Pl. Exh. H at
11:3-7. Plaintiff testified that Christine Campbell, his attorney
at the time of the indictment, told him on the day of the
indictment that she had tried earlier that day to get Plaintiff
to testify in front of the Grand Jury that afternoon, but had not
been allowed to do so. Pl. Exh. E at 84:20-23.
Plaintiff also alleges that although his Counsel sent
correspondence to SCPO dated July 23, 2001, as well as filing two
Motions to Dismiss dated October 9, 2001 and November 9, 2001,
respectively, which allegedly contained proof that the alleged
stolen property did not belong to Mr. Warren, the SCPO did not
immediately dismiss the indictment. The Indictment was dismissed
by The Hon. William L. Forester, J.S.C., on December 17, 2001. II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of
material fact is one that will permit a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of
material fact exists, the nonmoving party may not rest upon mere
allegations, but must present actual evidence in support thereof.
Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc.
Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the
Court must "view the inferences to be drawn from the underlying
facts in the light most favorable to the [nonmoving] party."
Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting
Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)).
B. Fictitious Party Pleading
The Court notes at the outset the poorly pled allegations in
the Complaint that relate to SCPO. The Complaint's caption lists
three sets of fictitious parties: John Doe Officers (1-5); John
Doe Investigators (1-5); and John Doe Prosecutors (1-5).
Defendant SCPO also has moved for summary judgment on behalf of
"John Doe Investigators (1-5)" and "John Doe Prosecutors (1-5)."
Under the Heading "Parties," ¶ 5 states:
Defendant, Salem County Prosecutor's Office, were at
all times relevant employees of the County of Salem.
At all times herein mentioned, defendant Salem County
Prosecutor's Office were acting under the color of
law and authority as an officer of the defendant,
Salem County. In this paragraph, Plaintiff's use of the plural "were," and
description of this "party" as "employees" and as an "officer of
the defendant, Salem County" appears to indicate that Plaintiff
has brought the instant action not against SCPO as an entity, but
rather as against individual employees of SCPO. Because Plaintiff
has nowhere asserted any claims against John Doe Investigators or
Prosecutors anywhere else in the Complaint, the Court assumes
that these are the fictitious names of the "employees" and
"officer[s]" referred to in ¶ 5, and Plaintiff's claims against
SCPO are brought only against these John Doe Investigators and
Prosecutors.*fn2 Also supporting this assumption is that
Plaintiff appears to recognize that SCPO is not a government
entity which can be sued under § 1983 separate from the
individual who is the county prosecutor or the governmental
entity that the county prosecutor serves, and that the County of
Salem is therefore the appropriately named party for a suit
against SCPO as an entity. See Complaint ¶ 26-28; Briggs v.
Moore, 2005 WL 1076059, at *4 (D.N.J. May 5, 2005) (collecting
authority).*fn3 Salem County is represented by separate counsel and, as noted,
has not moved for summary judgment here. Because the Court finds
that Plaintiff was never entitled to the benefit of New Jersey's
rule permitting fictitious party pleading, and no individual
employees have been given the appropriate notice of Plaintiff's
claims against them, it will dismiss the claims against all
individual employees of SCPO.
N.J. Civ. Prac. R. 4:26-4 provides, in pertinent part,
[i]n any action, . . . if the defendant's true name
is unknown to the plaintiff, process may issue
against the defendant under a fictitious name,
stating it to be fictitious and adding an appropriate
description sufficient to identify him. Plaintiff
shall on motion, prior to judgment, amend his
complaint to state defendant's true name, such motion
to be accompanied by his affidavit stating the manner
in which he obtained this information.
"The purpose of the rule is to render timely the complaint
filed by a diligent plaintiff, who is aware of a cause of action
against an identified defendant but does not know the defendant's
name." Greczyn v. Colgate-Palmolive, 183 N.J. 5
, 11 (2005)
(citations omitted). "[T]he rule will not protect a plaintiff who
had ample time to discover the unknown defendant's identity
before the running of the statute of limitations." Id.
(citations omitted). The identification of a defendant by a fictitious name pursuant to Rule 4:26-4, may be
used "only if a defendant's true name cannot be ascertained by
the exercise of due diligence prior to filing the complaint."
Claypotch v. Heller, Inc., 360 N.J. Super 472, 479-80 (App.
Div. 2003) (citations omitted). See also Younger v. Kracke,
236 N.J. Super 595, 597 (Law Div. 1989) (holding that plaintiffs'
failure to obtain a police report, which would have disclosed the
name, address, and insurance company of all of the drivers in an
automobile accident, constituted a lack of diligence which
precluded use of the fictitious name procedure authorized by Rule
Here, Plaintiff has no excuse for failing to name the employees
of SCPO that it claims played an active role in falsely and
maliciously prosecuting Plaintiff. As of May 2, 2001, or shortly
thereafter upon receipt of the transcript from the Grand Jury
proceedings, Plaintiff was or could have been aware that, as
argued in his opposition to Defendant's Motion for Summary
Judgment, Reilly was the SCPO attorney who presented the case to
the Grand Jury, and Chief Miller appeared at the scene of the
Pennsville Police Department's investigation of the dumpster
incident. Plaintiff also could have easily ascertained the names
of Brennan or any other SCPO supervisor that dealt with the
incident between Plaintiff and Warren in some capacity.
Plaintiff's failure to do so forces the Court to play guessing
games as to which SCPO employees he asserts liability for the
various alleged offenses described, and more importantly, fails
to put these employees on sufficient notice of the claims against
Statutes of limitations are intended (1) to stimulate litigants
to pursue a right of action within a reasonable time so that the
opposing party may have a fair opportunity to defend, thus
preventing the litigation of stale claims, and (2) to "penalize
dilatoriness and serve as a measure of repose" in fairness to
defendants. Rivera v. Prudential Prop. & Cas. Ins. Co.,
104 N.J. 32, 39 (1986) (citations omitted).
In § 1983 actions, the relevant statute of limitations is
provided by the applicable state statute. Michaels v. State of
New Jersey, 955 F. Supp. 315, 322 (1996) (citing Wilson v.
Garcia, 471 U.S. 261, 280 (1985)). Where a state has a statute
of limitations for certain enumerated intentional torts as well
as a residual statute for all other personal injury actions, the
residual statute should be applied to § 1983 claims. Id.
(citing Owens v. Okure, 488 U.S. 235, 249-50). In analyzing New
Jersey's statutes of limitations under Wilson and Owens, the
Third Circuit held that § 1983 claims are governed by New
Jersey's two year statute of limitations for personal injuries,
N.J.S.A. 2A:14-2. Id. at 322-23 (citing Cito v. Bridgewater
Township Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)).*fn4
Plaintiff's § 1983 claim accrued, and the statute of
limitations began to run, upon the termination of the criminal
proceeding in favor of the accused. Id. (citing Heck v.
Humphrey, 512 U.S. 477 (1994)). Here, that date was December 17,
2001, the date that the Indictment was dismissed. The Court
cannot find that the Plaintiff was unable to ascertain the
identities of the relevant SCPO employees and file a complaint naming them as
Defendants prior to December 16, 2003, for any reason other than
the lack of diligence. Because the Court finds that Plaintiff has
failed to meet the requirements for the invocation of Rule
4:26-4, it will dismiss Plaintiff's claims against the SCPO
employees as time-barred.
B. Absolute Immunity
Even if Plaintiff had appropriately named the individual SCPO
employees, these employees would be entitled to absolute immunity
for the allegations against them. Prosecutors retain absolute
immunity from liability at common law and 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." Imbler v. Pachtman,
424 U.S. 409, 430-31 (1975). In Imbler, the Supreme Court held
that prosecutors' common-law immunity from suits for malicious
prosecution and defamation should be extended to suits arising
under § 1983 because of its "concern that harassment by unfounded
litigation would cause a deflection of the prosecutor's energies
from his public duties, and the possibility that he would shade
his decisions instead of exercising the independence of judgment
required by his public trust." Id. at 423. Concluding that
"qualifying a prosecutor's immunity would disserve the broader
public interest," the Court decided that in the "`balance between
the evils inevitable in either alternative'" it would be "`better
to leave unredressed the wrongs done by dishonest officers than
to subject those who try to do their duty to the constant dread
of retaliation.'" Id. at 427-28 (quoting Gregoire v. Biddle,
177 F.2d 579, 581 (2d Cir. 1949) (Hand. J.)).
Plaintiff alleges that "despite the facts [sic] that Plaintiff
has given the Defendant's [sic] statements and proof that he did not engage in criminal activity,
the Defendants still presented evidence they knew or should have
known to be false to the Grand Jury," and that they failed to
investigate any of the information provided by Plaintiff. Id.
at ¶¶ 12, 13.*fn5 Plaintiff asserts that the following facts
support the liability of the unnamed SCPO employees:*fn6 (1)
although the SCPO file on the matter contained approximately 200
pages, the only evidence presented to the Grand Jury was a
photograph of Warren's property and a facsimile sent by Plaintiff
to Mr. Warren on November 3, 2000; (2) that the only testimony
heard by the Grand Jury was that of Warren and Acton, and Mr.
Massari was not made aware of the Grand Jury hearing nor invited
to testify, in contrast to SCPO protocol; (3) that there was no
independent investigation by the SCPO prior to the presentation
of the evidence to the Grand Jury, including into Mr. Warren's
proof of ownership; and (4) SCPO failed to dismiss the charges
upon Plaintiff's counsel filing two motions to dismiss along with
alleged proof that the property in question did not in fact
belong to Mr. Warren.
All of these allegations pertain to SCPO prosecutors' conduct
that is "intimately associated with the judicial phase of the
criminal process."*fn7 The "professional evaluation of the
evidence assembled by the police and appropriate preparation for its
presentation at trial or before a grand jury after a decision to
seek an indictment has been made" is entitled to absolute
immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
Moreover, "a prosecutor is absolutely immune when making this
decision, even where he acts without a good faith belief that any
wrongdoing has occurred." Kulwicki v. Dawson, 969 F.2d 1454,
1463-64 (3d Cir. 1992). Thus, both Brennan's initial screening of
the case for presentation to the Grand Jury, and Reilly's
decision to proceed once the case was assigned to him, were
actions for which both prosecutors are entitled to immunity. SCPO
prosecutors' failure to acknowledge allegedly exculpatory
evidence, including their failure to allow Plaintiff to testify
on his own behalf in front of the Grand Jury, is within the ambit
of their role as advocate for the State that is protected by
absolute immunity. Imbler, 424 U.S. at 431 n. 34. See also
Savage v. Bonavitacola, 2005 WL 568045, at *12 (E.D.Pa. Mar. 9,
2005) (collecting authority). Finally, Plaintiff's allegation
that the SCPO prosecutors failed to properly investigate the
matter before initiating the prosecution is also conduct within
the scope of absolute immunity. Schrob v. Catterson,
948 F.2d 1402, 1411 (3d Cir. 1991) (citations omitted).
III. CONCLUSION Because Plaintiff has failed to name the individual SCPO
defendants, and is not entitled to the benefit of New Jersey's
fictitious party pleading rule, his claims against these
defendants are time-barred. However, even if Plaintiff had
properly named the individual SCPO prosecutors such that his
claim against them was not barred by the statute of limitations,
Plaintiff's allegations against them all pertain to prosecutorial
functions for which they are immune from suit. Defendant's Motion
for Summary Judgment is granted. An appropriate order will
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