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Cresci v. Gyess

United States District Court, D. New Jersey

October 15, 2018

PETER J. CRESCI, Plaintiff,



         Peter J. Cresci, an attorney, [1] brings this action against Susan Gyss[2] based upon her actions as municipal prosecutor for the City of Bayonne in 2014. The operative pleading, the Amended Complaint ("AC", DE 14), asserts federal § 1983 claims of selective and malicious prosecution; excessive force under the Fourth Amendment; false imprisonment; abuse of process; First Amendment retaliation; and conspiracy. It also asserts state-law tort claims of tortious interference with prospective economic advantage and with contract, and for a declaratory judgment that Gyss was ineligible to serve as prosecutor.

         Gyss has filed a comprehensive Rule 12(b)(6) motion to dismiss the Amended Complaint for failure to state a claim. It cites such fundamental grounds as prosecutorial immunity. Because Cresci's response simply fails to address many of those grounds, I have discussed them only briefly. For the reasons stated herein, the motion to dismiss the Amended Complaint is granted, with prejudice.

         I. Background

         The allegations of the Amended Complaint are assumed to be true for purposes of this motion to dismiss. The complaint scrambles the chronology, omits key dates, and inexcusably omits key facts about the state-court proceedings on which it is based. It contains nonspecific, collateral objections to the New Jersey Intergovernmental Insurance Fund providing liability coverage to Gyss, the conspiratorial bringing of unspecified claims, undescribed press releases, and so forth. I concentrate here on the allegations that seem most pertinent to the § 1983 causes of action.

         Cresci was charged in municipal court via a criminal complaint-summons, No. S2014-060.[3] The charge was harassment under N.J. Stat. Ann. § 2C;33-4(a), a disorderly persons offense. (AC ¶ 6) The complaining witness seems to have been Adeline Gonzales, who was Mr. Cresci's tenant under a lease. (See AC ¶ 59) The genesis of the harassment complaint was "a landlord-tenant issue, in which the tenant was provided 90 plus days to vacate one of Plaintiffs properties." (AC ¶ 6) Gonzales "denied the harassment complaint . . . was anything more than a landlord-tenant issue."[4] (AC ¶ 6) "Subsequently, the Municipal Court Administrator denied probable cause, and Presiding Municipal Court Judge [identified as Frank Carpenter] denied probable cause." (AC ¶ 6)[5]

         Gyss, it is alleged, appealed from that denial. In doing so, she "bypassed the normal process and appealed the probable cause determination to her Husband's Office." (AC ¶ 7) Gyss was allegedly married to the then-Acting Hudson County Prosecutor, Gaetano Gregory. She "filed the appeal to her husband, Gaetano Gregory, at the Hudson County Prosecutor's Office without the knowledge of Presiding Municipal Court Judge Frank Carpenter. . . . the very Judge who denied probable cause on this Landlord-Tenant issue." (AC ¶ 16) Such an appeal does not comply with applicable procedures in the Rules of Court, N.J. Ct. R. 7:13-1 and R. 3;24(c).[6]

         Apparently the charges remained in place or were reinstated; the Amended Complaint does not indicate clearly what happened. Gyss was "able to get" the appeal before "Superior Court Judge dePascale, a former co-worker of Defendant [Gyss]" (AC ¶ 17) in order "to confirm the probable cause determination." (AC ¶ 12).

         "After several required appearances in court, the case was moved to [the] Town of Kearny. On April 7, 2015 Plaintiff was notified that a dismissal of the charges was made by Judge McKeon." (AC ¶ 10; see also AC ¶ 14)

         The Amended Complaint at numerous points alleges that "Defendant [Gyss] was violating the law by practicing criminal law within the county in which her husband was the county prosecutor." (AC ¶ 15; see also ¶¶ 9, 28) It further alleges that Cresci, as an attorney, had a history of suing the City and participating in investigations involving associates of Gyss. (AC ¶ 47)

         The Amended Complaint asserts nine lettered causes of action:

A. Malicious and selective prosecution without probable cause (§ 1983)
B. Excessive force (§ 1983)
C. Unlawful detention (§ 1983)
D. Abuse of process (§ 1983)
E. First Amendment retaliation (g 1983)[7]
F. Conspiracy to violate civil rights
G. Unlawful interference with prospective economic advantage
H. Tortious interference with contract
J.[8]Declaratory judgment that "pursuant to statute" Gyss was improperly practicing criminal law in the same county in which her husband was acting prosecutor.

         II. The Applicable Standard

         Rule 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 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). "[A] plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a 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 complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also West Run Student Hous. 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.

         III. Prosecutorial Immunity (Claims A, B, C, D, E & F)

         Before considering arguments directed to particular causes of action in the Amended Complaint, I address Gyss's overall assertion of prosecutorial immunity with respect to the federal Constitutional claims.

         "Prosecutorial immunity is 'more than a mere defense to liability.' Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008). Rather, it is an entitlement not to stand trial and serves as a complete bar to suit. Mitchell v. Forsyth, 472 U.S. 511, 512 (1985)." Mujaddid v. Wehling, No. CV 12-7750, 2016 WL 310742, at *6 (D.N.J. Jan. 25, 2016) (Simandle, C.J.), affd, 663 Fed.Appx. 115 (3d Cir. 2016). "[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under [§ ] 1983". Imbler v. Pachtman, 424 U.S. 409, 431 (1976). "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [her] role as an advocate for the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 273. Accord Williams v. Rivera, No. CIV. A. 05-4451, 2006 WL 469949, at *4-5 (D.N.J. Feb. 27, 2006) (Greenaway, J.).

A prosecutor's appearance in court as an advocate in support of an application for a search warrant and the presentation of evidence at such a hearing are protected by absolute immunity. Likewise, prosecutors are absolutely immune from liability when appearing before grand juries to present evidence. Burns v. Reed, 500 U.S. 478, 492 (1991). "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [her] role as an advocate for the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

         "Absolute" immunity, despite the terminology, is not unlimited in scope. It applies where the prosecutor is acting qua prosecutor, but not otherwise:

A prosecutor is not entitled to absolute immunity, however, for actions undertaken in some other function. See Kalina v. Fletcher, 522 U.S. 118, 129-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (holding that prosecutor is not protected by qualified immunity for attesting to the truth of facts contained in certification in support of arrest warrant, as in her provision of such testimony she functioned as a complaining witness rather than a prosecutorial advocate for the state); Burns v. Reed, 500 U.S. 478, 492-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (the provision of legal advice to police during pretrial investigation is not protected by qualified immunity); Buckley, 509 U.S. at 276-78 (prosecutor is not acting as an advocate, and is not entitled to absolute immunity, when holding a press conference or fabricating evidence); see also Yarris v. County of Del, 465 F.3d 129 (3d Cir. 2006) (analyzing when a prosecuting attorney is, and is not, entitled to absolute immunity for allegedly wrongful acts in connection with a prosecution and holding, for example, that a prosecutor is not entitled to absolute immunity for deliberately destroying highly exculpatory evidence, but is entitled to immunity for deciding to deliberately withhold exculpatory evidence before and during trial).

Delbridge v. Whitaker, Civ. No. 09-4227, 2010 WL 1904456, at *6 (D.N.J. May 10, 2010) (Wigenton, J.).

         The applicability of immunity depends on the nature of the function being performed-i.e., whether the prosecutor is acting as a prosecutor in pursuing and disposing of charges-not on whether that function is performed properly:

The availability of absolute prosecutorial immunity against an action under § 1983 depends on "the functional nature of the activities rather than the respondent's status" as a prosecutor. Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Immunity attaches when a prosecutor engages "with the judicial phase of the criminal process," but not when she is involved in "certain investigative activities" before a criminal action is initiated and presented to a court. Id. at 430. A prosecutor enjoys immunity from suit even where she has engaged in "malicious or dishonest action," so long as she was acting as the state's advocate at the time. Id. at 427; see also Odd, 538 F.3d at 208.

Mujaddid v. Wehling, 2016 WL 310742 at *6.

         Thus, a prosecutor is absolutely immune when making a decision to prosecute, "even where [she] acts without a good faith belief that a wrongdoing has occurred." Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir.1992); Rose v. Bartle, 871 F.2d 331, 343 (3d Cir.1989). In this regard, a falsely-charged defendant may be "remedied by safeguards built into the judicial system," such as dismissal of the charges. Kulwicki, 969 F.2d at 1464.

Prosecutors also are absolutely immune from a civil suit for damages under § 1983 for: (1) instituting grand jury proceedings without proper investigation and without a good faith belief that any wrongdoing occurred, [citing Schrob v. Catterson, 948 F.2d 1402, 1411 (3d Cir.1991)]; Rose v. Bartle, supra; (2) initiating a prosecution without a good faith belief that any wrongdoing has occurred, Kulwicki, 969 F.2d at 1463-64; (3) soliciting false testimony from witnesses in grand jury proceedings, probable cause hearings, and trials, Bums, 500 U.S. at 490; Kulwicki, 969 F.2d at 1467; and (4) the knowing use of perjured testimony in a judicial proceeding, Imbler, 424 U.S. at 424-27; Schrob, 948 F.2d at 1417; Brawer v. Horowitz, 535 F.2d 830 (3d Cir.1976).

Williams, 2006 WL 469949, at 5.

         The question, then, is whether Cresci's claims are based on Gyss's performance of her prosecutorial function of bringing and pursuing criminal charges. At the heart of Claims A, B, C, D, E, and F are allegations that Gyss brought and pursued harassment charges without probable cause and with retaliatory motives. Following an alleged decision by the chief municipal court judge that probable cause was lacking, Gyss appealed to the office of the Acting County Prosecutor (her husband), and the Superior Court (a judge who had once been a colleague). This appeal is alleged in the vaguest terms. In any event, however, such appeal efforts are within the prosecutorial function of pursuing charges. For whatever reason, the charges were lodged, although venue was moved to Kearny. (At this point, no further involvement of Gyss appears to be alleged.). It was in Kearny that they were dismissed.

         These are prosecutorial functions, intimately bound up with the litigation of criminal charges. True, the complaint states that those functions were performed in a wrongful manner- Gyss, it is alleged, did not possess probable cause, acted out of bad motives, had a disabling conflict of interest because of her husband's position, or did not comply with State rules, N.J. Ct. R. 7:13-1 and R. 3;24(c), governing procedures on appeal. But it is the prosecutorial function, not the rightful or wrongful exercise of that function, which gives rise to immunity. Prosecutorial immunity attaches to even knowing presentation of perjured testimony or pursuit of unfounded charges; surely these lesser conflicts of interest or procedural infirmities would be covered as well.

         With respect to municipal prosecutors-indeed, the Bayonne municipal prosecutor in particular-this Court has applied absolute prosecutorial immunity to dismiss constitutional claims of malicious prosecution and related causes of action. Mujaddid v. Wehling, supra (Vineland municipal prosecutors immune from claim of malicious prosecution); Delbridge v. Whitaker, supra (Bayonne municipal prosecutor immune from suit for claims arising from her acts in initiating or pursuing a criminal prosecution); Williams v. Rivera, supra (Bayonne municipal prosecutor immune from § 1983 claims of malicious prosecution, retaliation, etc.). See also Duffy v. Freed, 452 Fed.Appx. 200, 202 (3d Cir. 2011) (affirming dismissal of ADA claim of retaliatory prosecution brought by attorney against Galloway municipal prosecutor, finding prosecutor immune from suit based on his refusal to dispose of speeding ticket case on the basis of a "standard" plea deal); Fleming v. United Parcel Serv., Inc., 255 N.J.Super. 108, 167-68, 604 A.2d 657, 686-87 (Law Div. 1992) (municipal prosecutor of Saddle Brook is immune from federal and state law claims of malicious prosecution, abuse of process, slander, etc.), affd, 273 N.J.Super. 526, 642 A.2d 1029 (App. Div. 1994)."[9]

         Three of the Constitutional claims, although apparently barred by prosecutorial immunity, are phrased so unclearly as to merit further discussion. Counts B and C (excessive force and unlawful detention), as commonly understood, would not necessarily implicate the prosecutorial function. Indeed, those causes of action are ordinarily not asserted against a prosecutor at all, but against the police in connection with a defendant's arrest and detention prior to the bringing of criminal charges. Here, however, Cresci seems to assert that the mere pendency of charges or the requirement that he make routine court appearances constituted excessive force or unlawful detention. So understood, Claims B and C would implicate the core prosecutorial functions of bringing and pursuing criminal charges.

         Claim D (abuse of process) is opaque. Paragraph 16 of the facts section, ...

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