United States District Court, D. New Jersey
PETER J. CRESCI, Plaintiff,
SUSAN GYESS aka SUSAN GYESS GREGORY, Defendants.
KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE
J. Cresci, an attorney,  brings this action against Susan
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
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.
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.
was charged in municipal court via a criminal
complaint-summons, No. S2014-060. 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." (AC ¶ 6)
"Subsequently, the Municipal Court Administrator denied
probable cause, and Presiding Municipal Court Judge
[identified as Frank Carpenter] denied probable cause."
(AC ¶ 6)
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).
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).
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)
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 ¶
Amended Complaint asserts nine lettered causes of action:
A. Malicious and selective prosecution without probable cause
B. Excessive force (§ 1983)
C. Unlawful detention (§ 1983)
D. Abuse of process (§ 1983)
E. First Amendment retaliation (g 1983)
F. Conspiracy to violate civil rights
G. Unlawful interference with prospective economic advantage
H. Tortious interference with contract
J.Declaratory judgment that "pursuant to
statute" Gyss was improperly practicing criminal law in
the same county in which her husband was acting prosecutor.
The Applicable Standard
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.
Prosecutorial Immunity (Claims A, B, C, D, E &
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.
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).
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
Delbridge v. Whitaker, Civ. No. 09-4227, 2010 WL
1904456, at *6 (D.N.J. May 10, 2010) (Wigenton, J.).
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.
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
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
Williams, 2006 WL 469949, at 5.
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
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.
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.
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.
(abuse of process) is opaque. Paragraph 16 of the facts