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MASSARI v. SALEM COUNTY PROSECUTOR'S OFFICE

August 23, 2005.

ANTHONY MASSARI Plaintiff
v.
SALEM COUNTY PROSECUTOR'S OFFICE Defendant.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

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.

  I. BACKGROUND

  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 16:11-17; 20:12.

  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 ...


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