The opinion of the court was delivered by: Salas,district Judge
Now pending before this Court is the Office of the Passaic County Prosecutor's ("OPCP") and, in his official capacity, Prosecutor James Avigliano's ("the Prosecutor") joint motion for summary judgment. (Dckt. No. 91). Plaintiffs Joseph Duncan, Jason Goller, and Robert Martello jointly oppose the motion.*fn1 (Dckt. No. 93). The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendant's motion for summary judgment is GRANTED.
From the beginning, the Court notes that this action undisputedly arises out of a request by the Prosecutor that Plaintiffs provide urine specimens to the Passaic County Police Academy. Plaintiffs assert that they were harmed by this request and events that flowed therefrom. The Court also notes that in a parallel proceeding arising out of the facts and events at issue in this Court, the New Jersey Appellate Division held that under New Jersey law, a county prosecutor "has the authority to initiate and issue drug testing orders to police officers "based upon reasonable suspicion . . . when as here, the chief law enforcement officer in the affected jurisdiction consents to the County Prosecutor initiating the order." Passaic County PBA Local 197 v. Office of Passaic County Prosecutor, 895 A.2d 1187, 1192 (App. Div. 2006) (holding that in certain situations county prosecutors in New Jersey have the power to initiate and issue drug testing orders to law enforcement officers within the county based upon reasonable suspicion).
In the instant action, Plaintiffs assert the following claims against the OPCP and the Prosecutor: (1) violations of 42 U.S.C. § 1983; (2) violations of procedural and substantive due process, as well as equal protection, under both the Federal and New Jersey Constitution; (3) intentional infliction of emotional distress; (4) negligence; and (5) civil conspiracy.
In 2002, the OPCP formed a Joint Narcotics Task Force ("JNTF") made up of several Passaic County Sheriff's Officers, members of various municipal police departments and investigators as well as personnel from OPCP. (Def.'s 56.1 Statement, ¶ 1). In 2004, the JNTF began conducting a narcotics, prescription drug, and steroid distribution investigation in local gyms ("the investigation"). (Id. ¶ 2). During the investigation, Robert Post and Charles Post (collectively "the Post brothers") became suspects. (Id. ¶ 3). Wire intercept orders were secured as to the Post Brothers and by August 2004 numerous drug related conversations were recorded identifying numerous other gym member suspects, including several Passaic County Sheriffs Officers, municipal police and investigators. (Id. ¶ 4).
Communications intercepted during an authorized electronic wire interception ("wiretap") in the course of the investigation indicated that law enforcement agents had compromised the investigation by tipping the targets off as to the investigation. (Id. ¶ 6). During the course of the investigation, it became apparent that the wiretap ordered by the JNTF had been compromised by a law enforcement officer, whose identity was not known. (Id. ¶ 7). The unidentified officer(s) divulged secret information to some of the targets of the investigation. (Id. ¶ 8). In addition, at least one law enforcement officer had been arrested as a conspirator in the underlying narcotics investigation. (Id. ¶ 9). During the course of the investigation, it became clear that several members of law enforcement may have been involved in the conspiracy, both as users of illegal drugs and as possible distributors of illegal drugs. (Id. ¶ 12). On August 8, 2004, several non-law enforcement personnel were arrested and possessed materials which demonstrate a possible relationship with law enforcement personnel. (Id. ¶13).
The investigation continued and it was determined that during the investigation and after the arrests of a number of individuals as a result of the sweep, certain members of the Wayne Police Department, who were not involved in the JNTF investigations, and had no role in the investigations, attempted to solicit information and details concerning the investigation from law enforcement personnel involved in the investigation. (Id. ¶ 14). In fact, Plaintiffs admit that they spoke to officers of the JNTF regarding the investigation. (Pl. Response to Pl. 56.1 Statement ¶¶ 16, 18, & 18; See also Def.'s 56.1 Statement, ¶¶ 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 ). In particular, on August 9, 2004, Plaintiff Duncan then contacted JNTF Sergeant Celantano and inquired as to the targets of the JNTF investigation. (Pl. Response to Pl. 56.1 Statement ¶ 32). Plaintiff Duncan advised Sgt. Celentano that he knew the Post Brothers from the gym. (Id. ¶ 33). Plaintiff Duncan mentioned that there were rumors that Wayne police officers were being targeted in the investigation being conducted by the JNTF. (Id. ¶ 34). Plaintiff Duncan also asked Sergeant Celantano about the JNTF investigation and whether the investigation targeted a certain Wayne resident, Leonard Corsi. (Id. ¶35). At the time of the alleged incidents surrounding this investigation, Plaintiffs were employed by the Wayne Police Department. (Def.'s 56.1 Statement, ¶¶ 19, 20, & 21).
Additionally, after the arrest of the Post brothers on Monday, August 19, 2010, Plaintiff Goller, who also had no connection with the JNTF investigation and who worked under the control of Plaintiff Duncan on his shift, made a personal on-duty visit to Detective Zaccone's home and inquired about the Post brothers' arrest. (Id. ¶ 37).
The Prosecutor consulted with his staff and with Chief Raymond Riga about whether drug testing would be appropriate for members of the Wayne Police Department if it were determined that reasonable suspicion existed as to their use of illegal drugs. (Id. ¶ 39). Based on the discussion at the meeting, Chief Riga and the Prosecutor made the decision that reasonable suspicion existed to drug test certain officers, including Plaintiffs. (Id. ¶ 40, 42, 43, 44)..
Plaintiffs assert the following claims against the OPCP and the Prosecutor in his official capacity: (1) violations of 42 U.S.C. § 1983; (2) violation of procedural and substantive due process, as well as equal protection, under both the Federal and New Jersey Constitution; (3) intentional infliction of emotional distress; (4) negligence; and (5) civil conspiracy. The Court will address first the Federal claims and then move to the state law claims.
The Eleventh Amendment protects non-consenting states from suits brought in federal court by private citizens seeking money damages. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The protection extends to state agencies as long as the state is the "real party in interest." Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989). Applying the Fitchik analysis, the Third Circuit held that county prosecutor's offices are agents of the state when performing classic law enforcement and investigative functions. See Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996). And, Courts within the Third Circuit have consistently held that the Eleventh Amendment precludes federal suits against New Jersey county prosecutors, as well as their offices, arising out of their law enforcement functions on the basis that the real party in interest in these suits is the State of New Jersey. See Beightler v. Office of Essex County Prosecutor, 342 Fed. App'x. 829 (3d Cir. 2009) (defendant entitled to sovereign immunity for action stemming out of decision to prosecute plaintiff for unlawful possession of a firearm); Hyatt v. County of Passaic, No. 08--3206, 2009 WL 2055136 (3d Cir. July 16, 2009) (county prosecutor's office entitled to sovereign immunity on charges of malicious prosecution, false arrest, and false imprisonment claims because procedures, policy, and training implicated in incident were related to the prosecutorial function); Nugent v. County of Hunterdon, No. 09--2710, 2010 U.S. Dist. LEXIS 47654, 2010 WL 1949359 (D.N.J. May 14, 2010) (noting that while local government units can be sued under § 1983, "under New Jersey law, a county prosecutor's office does not have a separate legal existence ... [and][t]herefore, New Jersey courts have consistently held that a county prosecutor's office is not a suable entity under § 1983") (citations omitted); Logan v. New Jersey, No. 09--1528, 2010 U.S. Dist. LEXIS 13479, 2010 WL 572127 (D.N.J. Feb. 17, 2010) (JAP) (claims arising from prosecutor's office's decision to unsuccessfully pursue plaintiffs on charges of resisting arrest and inciting a riot); Paez v. Lynch, No. 07--5036, 2009 U.S. Dist. LEXIS 119342, 2009 WL 5171858 (D.N.J. Dec. 23, 2009) (granting summary judgment for defendant on claims of malicious prosecution under federal and state law); Watkins v. Attorney General of New Jersey, No. 06--1391, 2006 U.S. Dist. LEXIS 73075, 2006 WL 2864631 (D.N.J. Oct. 4, 2006) ...