On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4117-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
Plaintiff, Robert Egan, appeals from the orders of February 16, 2006, granting the summary judgment motions of defendants Kimberly Holmes, Sylvia Presto, the City of Hackensack, and Robert Adamski, and dismissing the complaint. In her cross-appeal, defendant Kimberly Holmes appeals from the order of February 16, 2006, denying her motion for partial summary judgment and dismissing her counterclaim and third-party complaint.
This litigation arose out of criminal charges brought against plaintiff due to events that took place at his restaurant, Cubby's Restaurant, in the City of Hackensack on May 10, 2000.*fn1 On that day, three men, who were Africans, entered plaintiff's restaurant and became difficult, refusing to order. According to plaintiff, when defendant asked them to leave, one of the men became verbally abusive, shouting racial epithets at plaintiff and threatening to get a gun. Plaintiff called the police, and then followed the men into the parking lot to obtain the license plate number of their vehicle. Four witnesses, consisting of two customers, one employee, and one restaurant supplier, confirmed this version of events.
According to plaintiff, the men assaulted him in the parking lot. Two of the witnesses confirmed plaintiff's account of the assault. The police arrested the three men, and later that day, plaintiff signed complaints against them for aggravated assault, terroristic threats and defiant trespass. The police report prepared on the day of the incident stated that plaintiff was the victim of the assault.
Several days later, the three men signed complaints against plaintiff for an alleged bias incident. The matter was turned over to Assistant Prosecutor, defendant Holmes, who handled bias crimes. She requested a report from defendant Adamski, the first Hackensack Police officer to arrive at the scene on May 10, 2000. In his police report prepared on May 17, 2000, Adamski stated that when he arrived at the scene, he saw plaintiff run up to the vehicle and repeatedly slam the door on one of the three men.
Holmes then presented the case to the grand jury, including the testimony of defendant Adamski, a statement from plaintiff (who declined to appear upon advice of counsel), a security video showing the inside of the restaurant during the incident,*fn2 and the testimony of the three complainants, the four witnesses confirming plaintiff's version of events, Officer Smith, and another officer who initially spoke to the complainants at the police station. On August 9, 2001, plaintiff was indicted on one count of aggravated assault, three counts of bias assault, and three counts of bias harassment. Plaintiff was never arrested or placed in custody for the charges.
While the indictment was pending, plaintiff undertook what he describes as a public campaign to clear his name, including hiring an airplane to fly over the state house in Trenton with a sign that read "Prosecutor Kimberly Holmes Lies, Lies, Lies." He also posted on the marquee to his restaurant the words "Kim Holmes is the Winner of the First Annual Pork Butt of the Year Award."
An enhanced copy of the security tape did not confirm the allegations of the three men. Accordingly, on August 27, 2002, the prosecutor administratively dismissed the indictment against plaintiff.
Plaintiff filed this lawsuit, contending that defendants violated his federal constitutional rights under the First, Fourth and Fourteenth Amendments to the United States Constitution and seeking remedies under 42 U.S.C.A. §§ 1983 and 1988. He also contended in his complaint that defendants conspired to retaliate against him by presenting false testimony and bringing unlawful charges without probable cause, in violation of 42 U.S.C.A. §§ 1985(2) and 1986. In addition to these federal claims, plaintiff asserted State constitutional law claims and the common law tort claims of abuse of process and intentional misrepresentation. Holmes filed a counterclaim against plaintiff and a third-party complaint against Cubby's Restaurant alleging defamation.
By consent orders dated April 17, 2003, plaintiff voluntarily dismissed with prejudice the following claims against defendants Holmes and Presto: the 42 U.S.C.A. § 1983 claims stemming from the grand jury proceedings; the claims under 42 U.S.C.A. §§ 1985(2) and 1986; the State constitutional law claim under N.J. Const. art. I, ¶ 7; and all of the common law tort claims. By consent order dated October 2, 2003, plaintiff voluntarily dismissed with prejudice the following claims against the defendant City of Hackensack: the 42 U.S.C.A. § 1983 claims arising from the testimony of the Hackensack police officers before the grand jury; the claims under 42 U.S.C.A. §§ 1985(2) and 1986; the claims under N.J. Const. art. I, ¶ 7; and all of the common law tort claims.
On motions for summary judgment, the trial judge dismissed both plaintiff's complaint and defendant Holmes' counterclaim and third-party complaint. In his eighteen-page written opinion, the trial judge found that plaintiff failed to state a claim. Further, even if plaintiff's claims were validly asserted, the trial judge found that defendants were protected by various immunities, holding that Holmes was serving in an advocacy role and was entitled to the absolute immunity accorded prosecutors; that Presto, a detective with the prosecutor's office, was also entitled to the absolute immunity accorded prosecutors and that even if only qualified immunity applied, she would still be immune; and that defendant Adamski was entitled to absolute testimonial immunity for his testimony before the grand jury and absolute immunity for the contents of the police report he prepared at Holmes' request. In addition, the trial court found that plaintiff failed to make out a claim under 42 U.S.C.A. ...