United States District Court, D. New Jersey
PETER J. CRESCI, et al., Plaintiffs,
JOARRIE AQUINO, Individually, MICHAEL A. SIGNORILE, JR., Individually, COUNTY OF HUDSON; and John Does 1-4, Defendants.
MCNULTY United States District Judge.
the New Jersey Rules of Court, a
"complaint-warrant" may be issued if there is
probable cause to believe a person has committed or is
committing a serious offense. For other, relatively less
serious offenses, a "summons-complaint" is issued.
A complaint-warrant may furnish the basis for an arrest; a
summons-complaint is a notice to appear. In June 2013, a New
Jersey municipal court judge found probable cause to believe
that the plaintiff here, Peter Cresci, committed two third
degree offenses-crimes that would ordinarily call for a
summons-complaint. But the judge issued a warrant-complaint
instead, so he was arrested. That procedural irregularity,
Cresci claims, violated his constitutional rights.
brings this action against the arresting officers, Detectives
Joarrie Aquino and Michael Signorile, Jr., as well as the
County of Hudson (the "County"), alleging
violations of his First, Fourth, Fifth, and Fourteenth
Amendment rights. He also asserts a potpourri of state law
torts, including battery, assault, intentional and negligent
infliction of emotional distress, and unlawful interference
with prospective economic advantage. Defendants move to
dismiss the complaint on grounds of sovereign and qualified
immunity. In the alternative, they move to dismiss the
complaint for failure to state a claim. For the reasons
stated herein, the motions will be GRANTED.
is an attorney. He suggests that the County is hostile to
him, because he has sued the County on several occasions. He
also represented County employees during a successful
unionization drive, and has "cooperated in several
investigations regarding County of Hudson administrators,
including the Hudson County Sheriffs Hatch Act
violations." (Compl. ¶ 43).
on the review of financial records 8b court documents, and a
sworn statement of the victim, " on June 10, 2013,
Signorile swore under oath that there was probable cause to
believe Cresci had committed third degree theft and
forgery. A municipal judge agreed, and issued a
warrant-complaint. Cresci was arrested later that day. At the
time, Cresci was conducting a medical malpractice trial in
New Jersey state court. Signorile handcuffed Cresci from
behind, allegedly injuring him in some manner. Signorile and
Aquino then "Perp Walked" Cresci though the
courthouse and outside. (ECF No. 41-6; Compl. ¶¶
was taken by Signorile and Aquino to the Hudson County
Prosecutor's Office ("HCPO"). There, Aquino
inventoried Cresci's personal effects. At his initial
appearance, the municipal judge declined to release him on
his own recognizance, and set bail. Cresci was remanded to
custody. Although he invoked his right to counsel, he was not
allowed to meet with a lawyer. He was not provided with food
or drink for the first 10 hours of imprisonment. He did not
receive medical attention for the unspecified injury he
suffered incident to arrest. Before posting bail and being
released, he spent about 25 hours in jail. (Compl.
¶¶ 9-12, 16)
25, 2013, a New Jersey grand jury returned a true bill
against Cresci for the crimes of third degree theft and
forgery. (ECF No. 41-7)
August 5, 2013, Cresci filed this complaint. It primarily
asserts five lettered causes of action:
A. False arrest: violations of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983;
B. Excessive force: violations of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983;
C. False imprisonment: violations of the Fourth and
Fourteenth Amendments under 42 U.S.C. § 1983;
D. Abuse of process; and
E. First Amendment Retaliation under 42 U.S.C. § 1983.
Judge Faith S. Hochberg administratively terminated the case
on April 7, 2014, pending resolution of the underlying
criminal proceedings. Two years later, on June 2, 2016,
Cresci represented that the "underlying [criminal]
action has been resolved." Judge Hochberg having retired in
the interim, this civil case was reassigned to me, and I
reopened it. (ECF Nos. 1, 30, 34, 35, 37)
August 31, 2016, Aquino and Signorile filed a renewed motion
to dismiss. On October 4, 2016, Hudson County filed a
"cross-motion" to dismiss, essentially adopting the
arguments and reasoning of Aquino and Signorile's motion.
(ECF Nos. 41, 47)
STANDARD OF REVIEW
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) may be raised at any time.
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38
(D.N.J. 1999). Rule 12(b)(1) challenges may be either facial
or factual attacks. See 2 Moore's Federal
Practice § 12.30 (3d ed. 2007). The defendant may
facially challenge subject matter jurisdiction by arguing
that the complaint, on its face, does not allege sufficient
grounds to establish subject matter jurisdiction. "In
reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff." Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
addition, and in the alternative, the motions seek dismissal
of the complaint for failure to state a claim. Fed.R.Civ.P.
12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief
can be granted. The moving party bears the burden of showing
that no claim has been stated. Animal Science Products,
Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9
(3d Cir. 2011). For the purposes of a motion to dismiss, the
facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff.
New Jersey Carpenters & the Trustees Thereof
v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302
(3d Cir. 2014).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and formulaic recitation of
the elements of a cause of action will not do." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus,
the factual allegations must be sufficient to raise a
plaintiffs right to relief above a speculative level, such
that it is "plausible on its face." See
Id. at 570; see also West Run Student Housing
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169
(3d Cir. 2013). That facial-plausibility standard is met
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While "[t]he
plausibility standard is not akin to a 'probability
requirement'... it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
The County's "Cross-Motion"
some brush-clearing. Cresci takes issue with the County's
"cross-motion" to dismiss, and asks me to
"bar" it. The argument seems to be that the County
has waived its right to assert defenses under Federal Rules
of Civil Procedure 12(b)(1) or 12(b)(6) because it has filed
an answer. But lack of subject matter jurisdiction may be
raised at any time. Fed.R.Civ.P. 12(h)(3). And a motion to
dismiss for failure to state a claim upon which relief can be
granted may be made as motion for judgment on the pleadings
at any time, so long as trial is not delayed. Fed.R.Civ.P.
12(c), 12(h)(2). The County's motion was made well in
advance of trial. There is no risk of delay.
there any procedural disadvantage to Cresci. The County's
motion is not really a "cross-motion" at all, but
merely a joining-in and adoption of the arguments presented
in the individual defendants' motion to dismiss. Cresci
has been afforded, and has taken, the opportunity to respond
to both motions. (ECF Nos. 44, 50). I therefore deny
Cresci's request to strike or bar the County's
Sovereign Immunity/Section 1983 "Persons"
move to dismiss the complaint on jurisdictional grounds,
claiming that they partake of the State's Eleventh
Amendment sovereign immunity. The Eleventh Amendment to the
Constitution guarantees the states immunity from certain
claims: "The Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State." U.S. Const. Amend. XI. Despite the
limited scope of its wording, the Eleventh Amendment has long
been held to incorporate a more general principle of
sovereign immunity that bars citizens from bringing suit
against any state in federal court. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984). The Eleventh Amendment, as a bar to suit, is of
jurisdictional stature. Id. at 98 (citing Hans
v. Louisiana, 134 U.S. 1 (1980)).
federal-law claims are brought under 42 U.S.C. § 1983.
Although Congress may in some circumstances override a
state's sovereign immunity, it did not do so when it
enacted section 1983. Quern v. Jordan, 440 U.S. 332,
342 (1979). Monetary claims for deprivations of civil rights
under section 1983 are therefore subject to the Eleventh
Amendment sovereign immunity bar. Will v. Michigan
Dep't of State Police, 491 U.S. 58, 58 (1989). That
bar applies to state common law causes of action as well.
See College Savings Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 131 F.3d 353, 355 n.l (3d Cir. 1997),
affd, 527 U.S. 666 (noting that a claim of common
law unfair competition "obviously could not be asserted
successfully [against instrumentality of the state] in light
of the Eleventh Amendment"); Doe v. Div. of
Youth & Family Servs., 148 F.Supp.2d 462,
492 (D.N.J. 2001) (claim of common law negligence was barred
by the Eleventh Amendment).
and Signorile, however, are not themselves the State. They
are not sued in their official capacities as County (let
alone State) employees, but rather in their individual
capacities. Hafer v. Melo, 502 U.S. 21, 27 (1991)
("[O]fficers sued in their personal capacity come to
court as individuals."); Scheuer v. Rhodes, 416
U.S. 232, 238 (1977) ("[D]amages against individual
defendants are a permissible remedy in some circumstances
notwithstanding the fact that they hold public
the County identical to the State. See Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, 440
U.S. 391, 401 (1979) ("[T]he Court has consistently
refused to construe the [Eleventh] Amendment to afford
protection to political subdivisions such as counties and
municipalities even though such entities exercise a
'slice of state power."); accord Mt. Healthy
City School Dist. Bd. Educ. v. ...