United States District Court, D. New Jersey
Ibn Sharif has filed an Amended Complaint in three counts
against Captain Francesca Aquila, Detective Rocco Duardo,
Detective Joseph Gonzales, and Detective Lieutenant Scott
Sybel. It arises from the allegedly wrongful arrest and
filing of criminal charges (now dismissed) against Sharif for
allegedly selling cocaine to an undercover officer.
Memorandum Opinion (DE 15, cited as "Mem. Op.") and
Order (DE 16), I granted defendants' motion to dismiss
the original complaint because it failed to allege factually
that Sharif was arrested or prosecuted without probable
cause. The original complaint stated the legal conclusion
that this was a "false" arrest and prosecution, and
noted that the three officers involved had committed wrongful
acts in connection with an unconnected case. The original
complaint, however, did not so much as deny that the cocaine
sale had occurred as charged. That dismissal, however, was
without prejudice to the filing, within 30 days, of an
November 29, 2018, plaintiff, by his counsel, filed his
(First) Amended Complaint (cited herein as "1AC").
The Amended Complaint asserts three counts:
I. False arrest and false imprisonment in violation of the
U.S. Constitution, impliedly under 42 U.S.C. § 1983;
II. Malicious prosecution, also impliedly under § 1983;
III. Violation of the New Jersey Constitution.
City of Hackensack and the Hackensack Police Department,
named as defendants in the original complaint, have been
dropped from the Amended Complaint. The corresponding Monell
claims of municipal liability (former Counts III and IV) have
likewise been dropped, although some of the underlying
factual allegations remain in the body of the Amended
Officers Duardo, Gonzales, and Sybel have moved to dismiss
the First Amended Complaint for failure to state a claim,
pursuant to Fed.R.Civ.P. 12(b)(6). In short, they contend
that the complaint in its amended version still fails to
allege lack of probable cause factually, but continues to
rely on mere legal conclusions. I disagree; the factual
allegations of the Amended Complaint suffice (if only barely)
to remedy the defects of the original. The motion to dismiss
will therefore be denied.
with my prior Memorandum Opinion is assumed. The key
allegations of the Amended Complaint are as follows.
March 15, 2016, at approximately 6:00 p.m., Sharif was
arrested by Duardo and Sybel pursuant to three outstanding
warrants. (1AC ¶ 16). The charges and the arrest warrant
were based on Sharif s alleged participation in sales
transactions for cocaine with Gonzalez and Duardo (in an
undercover capacity) on March 15, April 12, and May 11, 2016.
defendant denies involvement in any drug transaction on March
15, 2016. Gonzalez and Duardo he says, "falsely claimed
that the Plaintiff was engaged in an undercover purchase,
"allegations which led to his being "falsely
accused of selling cocaine to the defendant, Det.
Gonzalez." (1AC ¶ 19) The Amended Complaint makes
nearly identical allegations as to the other two purchases on
April 12 and May 11, 2016. (1AC ¶¶ 20, 21)
on those alleged undercover purchases, Sharif was charged
with selling cocaine to an undercover officer in violation of
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), as well as
knowingly possessing a controlled dangerous ...