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Gary L. Stolinski v. Lt. Jay Pennypacker

May 14, 2012


The opinion of the court was delivered by: Simandle, Chief Judge:



This matter involving workplace retaliation is before the Court on Defendants' motion to dismiss Plaintiff's Complaint. [Docket Item 7.] The principal issue is whether Plaintiff's claims are actionable despite the two-year statute of limitations; specifically, the issue is whether instances of allegedly retaliatory investigation, wrongful discipline, and the institution of wrongful disciplinary proceedings prior to 2009 are nevertheless actionable because of post-2009 instances of retaliation or because of the ongoing nature of the disciplinary proceedings. For the reasons set forth in today's Opinion, the Court will dismiss the Complaint as largely time-barred, and otherwise insufficient to state timely claims.


This Complaint arises out of a wider controversy between the parties, part of which was litigated in Civil Action 07--3174 before this Court. See Stolinski v. Pennypacker, 772 F. Supp. 2d 626 (D.N.J. 2011) ("Stolinski I"). In that earlier action, the Court considered and rejected Plaintiff's claim that he was maliciously prosecuted for credit card fraud, official misconduct, and identity theft.

A brief review of the facts and procedural history of that action is necessary to place the current civil action in the proper context. Plaintiff Gary L. Stolinski is a Sergeant with the New Jersey State Police. On July 15, 2005, a New Jersey grand jury indicted him on three criminal counts relating to his entering false information on credit card applications. One count of the indictment was based on Stolinski having obtained the social security number of an Arizona resident to commit identity theft. On December 2, 2005, the charges against Stolinski were dismissed by the prosecutor when she discovered that, with respect to the identity theft charge, Stolinski had not obtained personal information from the Arizona resident; instead he had entered his business's tax ID in the application's space for a social security number, which tax ID is coincidentally identical to the Arizona resident's social security number. Id. at 630.

Plaintiff filed a malicious prosecution action (with some related claims) against the lead police investigator and his supervisors. The Court granted the defendants' summary judgment motion, finding that there was probable cause to believe Plaintiff committed some of the criminal conduct for which he was charged, and that this was sufficient to defeat a malicious prosecution action under the circumstances of this case. Specifically, the Court found that no reasonable jury could find that the lead investigator, Pennypacker, lacked probable cause to believe credit card fraud and official misconduct had occurred. Pennypacker had probable cause because the magnitude and nature of the pervasive pattern of material errors on the credit applications submitted by Stolinski, along with the other circumstances of this case such as his bleak financial situation, were evidence of a deliberate scheme to obtain credit under a false identity or based on fraudulent financial information while maintaining plausible deniability. Id. at 642.

Prior to the summary judgment motion, Plaintiff had moved to supplement the Complaint in Civil Action 07--3174 with the allegations contained in the Complaint now before the Court. But a scheduling order of December 22, 2008 had set the deadline for amendment of the Complaint as February 27, 2009, over twenty months before Plaintiff eventually sought leave to amend in November 2010. Although the deadline for the completion of discovery was extended multiple times, Plaintiff had not sought any extension of the deadline for filing amended pleadings. Consequently, Magistrate Judge Donio denied the motion to amend and supplement, finding that the motion was unduly delayed, and would prejudice Defendants. The undersigned affirmed Judge Donio's Order. Stolinski v. Pennypacker, CIV. 07-3174 JBS, 2011 WL 3608685 (D.N.J. Aug. 15, 2011).

Plaintiff filed the present complaint on July 28, 2011, setting forth the allegations he unsuccessfully sought to add to the earlier docket. Plaintiff brings various causes of action relating to retaliation allegedly occurring in different forms from different superiors in the Police Department since March 2006. Plaintiff alleges that Defendants, including six new defendants not named in Civil Action 07--3174, retaliated against him for filing a notice of tort claims on March 6, 2006 and because his father filed a formal complaint with the State Police in December 2006.

The retaliation allegedly involved Defendant Pennypacker unsuccessfully seeking in 2006 to convince federal prosecutors to bring federal charges related to Stolinski's credit card fraud and official misconduct; the police department bringing administrative proceedings to terminate Stolinski based on eight alleged violations of State Police Rules and Regulations, with official charges having been served on Stolinski on April 4, 2008; and the department changing the conditions of Stolinski's employment on July 2, 2010 by forcing Stolinski to surrender his weapon and vehicle and relinquish his police powers.

Defendants now seek to dismiss the Complaint, arguing among other things that the claims other than the claims about the July 2010 conduct are barred by the two-year statute of limitations, and that the July 2010 claims are insufficient to state a claim.*fn1


A. Standard of Review

To plead a claim sufficient to satisfy Rule 8, Fed. R. Civ. P., a complaint must plead those facts about the conduct of each defendant giving rise to liability. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). These factual allegations must go beyond legal boilerplate and present a plausible basis for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In its review of a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 663. Therefore, to state a claim for relief, the complaint must plead concrete facts that plausibly suggest that legal misconduct has occurred (i.e., are not merely ...

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