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Cope v. Kohler

United States District Court, D. New Jersey

June 29, 2015

DEMETRIUS C. COPE, Plaintiff,
v.
DAVE KOHLER, et al., Defendants.

DEMETRIUS C. COPE, Willingboro, New Jersey, Plaintiff Pro Se.

LUANH LLOYD D'MELLO, DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL STATE OF NEW JERSEY, DIVISION OF LAW, Trenton, New Jersey, Attorney for Defendant Dave Kohler.

OPINION

JEROME B. SIMANDLE, Chief District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendant Dave Kohler's ("Defendant") Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Docket Entry 35). Pro se Plaintiff Demetrius C. Cope ("Plaintiff") filed an opposition to Defendant's motion. (Docket Entry 41). This motion is being considered on the papers pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendant's motion shall be denied without prejudice.

II. BACKGROUND

A. Procedural History

On August 17, 2012, Plaintiff filed this civil rights complaint pursuant to 42 U.S.C. § 1983 alleging Defendant and others engaged in malicious prosecution. (Docket Entry 1). By Order dated March 4, 2013, this Court granted Plaintiff's motion to proceed in forma pauperis and administratively terminated the complaint for failure to state a claim. (Docket Entries 3 & 4). Plaintiff filed an amended complaint on May 17, 2013. (Docket Entry 11). After engaging in sua sponte screening pursuant to 28 U.S.C. § 1915, the Court permitted the amended complaint to proceed against Defendant on the malicious prosecution claim only. (Docket Entry 14). With leave of Court, Defendant filed the instant Motion to Dismiss. (Docket Entry 35). Plaintiff filed opposition to the motion. (Docket Entry 41).

B. Factual Background

1. Allegations in the Pleadings

In March 2007, Defendant Dave Kohler and Officer John Fine, both detectives with the Burlington County Prosecutor's Office ("BCPO"), [1] met with a first-time confidential informant ("CI 1551"). He[2] informed the officers that he had information regarding a "large scale cocaine distribution operated by [Plaintiff]." (Amended Compl. at 19).

CI 1551 indicated that Plaintiff had been selling cocaine for over ten years, and he had been buying cocaine from Plaintiff's house for six months. (Id. at 19). He alleged Plaintiff obtained "kilogram quantities" of powder cocaine from a source in New York City and then re-packaged the cocaine for distribution throughout Burlington County by Mark McNeil. (Id. at 19-20). He also stated Plaintiff used pre-paid wireless telephones to communicate with others, which he changed frequently to avoid detection by police. (Id. at 19). CI 1551 indicated the frequent changing of Plaintiff's number was why he did not have a current contact number for Plaintiff. (Id. at 6).

Following their conversation with CI 1551, Defendant and Officer Fine, with cooperation from the Drug Enforcement Administration ("DEA"), began an investigation, dubbed "Operation Whirlwind, " into the distribution scheme. (Id. at 6). The BCPO obtained wiretaps for McNeil's phone, however "there was no probable cause to obtain any [wiretaps] for [Plaintiff]." (Id. at 7). Accepting Plaintiff's allegations as true, the wiretaps did not contain any narcotic-related conversations, but Defendant deliberately interpreted the conversations as referring to the distribution of cocaine. (Id. at 7). Furthermore, the recorded conversations indicated someone named "Ali" from Newark, New Jersey was McNeil's source of cocaine, not Plaintiff. (Id. at 7).

As Operation Whirlwind proceeded, information came to light that contradicted CI 1551's account of the conspiracy. A second confidential informant ("CI 2"), who had previously given reliable information to law enforcement, informed the BCPO that McNeil operated the distribution ring, not Plaintiff. (Id. at 7). CI 2 made no mention of Plaintiff's involvement with McNeil or the distribution of cocaine. (Id. at 7). Furthermore, a conversation between McNeil and Plaintiff that was intercepted on ...


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