JOE PASZKOWSKI v. ROXBURY TOWNSHIP POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOE PASZKOWSKI,

Plaintiff-Appellant,

v.

ROXBURY TOWNSHIP POLICE DEPARTMENT,

OFF. JOHN SYLVESTER, and LT. TIMOTHY

DRISCOLL,

Defendants-Respondents.

______________________________________

May 25, 2016

Submitted April 6, 2016 Decided

Before Judges Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0437-14.

Joel I. Rachmiel, attorney for appellant.

Schenck, Price, Smith & King, L.L.P., attorneys for respondents (John M. Bowens, on the brief).

PER CURIAM

Plaintiff Joe Paszkowski appeals from a September 19, 2014 order dismissing with prejudice his civil rights complaint against defendants Roxbury Township Police Department and two Roxbury police officers. We affirm.

I.

On April 16, 2013, plaintiff called his adult daughter, J.S.,1 and left the following voicemail concerning the recent death of her husband

I heard Nick is dead, that he committed suicide. I'm going to hang both of you f**kers so bad. I'm coming up to New Jersey. I'm leaving tomorrow morning and I'm going to f**king have a prosecutor look into this case for what you did to f**king Nick. You two mother f**kers are going to be both in jail.[2]

On April 29, 2013, J.S. went to the Roxbury Township Police Department to report that threat, as well as other threats she had received from plaintiff. J.S. met with Roxbury Police Officer John Sylvester and reported that she was estranged from her father, her father blamed her for the death of her husband, and that since the death of her husband, plaintiff had left several threatening messages and had also told J.S.'s mother and cousin that he was going to kill J.S. J.S. played for Officer Sylvester three voicemails that plaintiff had left, including the message left on April 16, 2013. J.S. requested a restraining order against plaintiff and told Sylvester that she was in fear for her life. J.S. also told Sylvester that she believed that plaintiff was unstable and that plaintiff, who lived in Pennsylvania, owned at least four guns.

After speaking with J.S., Sylvester consulted with two assistant prosecutors. He then prepared a criminal complaint-warrant, which charged that plaintiff did "knowingly and purposely threaten to kill another, specifically by hanging them in violation of [N.J.S.A. 2C:12-3(b)], a crime of the third degree." The complaint-warrant was reviewed by Roxbury Police Lieutenant Timothy Driscoll. Thereafter, Sylvester called a municipal judge and, after J.S. testified under oath on the phone, requested authorization to issue the complaint with a warrant for plaintiff's arrest and authorization to issue a temporary restraining order under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The municipal judge found probable cause for issuance of the criminal complaint and authorized a warrant for plaintiff's arrest, setting bail at $50,000. The municipal judge also authorized the issuance of the temporary restraining order.

When J.S. learned that plaintiff would be arrested, she told Sylvester that she no longer wanted to pursue either the criminal charges or the restraining order. Sylvester consulted further with one of the assistant prosecutors and the municipal judge. Thereafter, he issued both the criminal complaint-warrant and the temporary restraining order.

On May 8, 2013, members of the Pennsylvania State Police arrested plaintiff at his home and incarcerated him in Pennsylvania pending extradition to New Jersey. While incarcerated, plaintiff suffered an angioedema attack. As a result, plaintiff was hospitalized and the warrant for his arrest was vacated. Thereafter, J.S. dismissed the temporary restraining order against plaintiff and a grand jury returned a no bill on the criminal charges against plaintiff.

In October 2013, plaintiff filed a civil complaint in the Superior Court against defendants Roxbury Police Department, Officer Sylvester and Lieutenant Driscoll. He alleged that defendants violated both his federal and state civil rights by issuing the criminal complaint and causing his arrest. The action was removed to federal court, where plaintiff filed an amended complaint. Plaintiff's amended federal complaint included federal claims based on 42 U.S.C.A. 1983 and state law claims under Article I, paragraph 7 of the New Jersey Constitution and both sections of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The complaint contained two counts. The first count focused on the individual defendants and alleged violations of plaintiff's right to be free from unlawful seizure. The second count focused on the police department and its alleged failure to properly screen, train and supervise the individuals and provide adequate safeguards to prevent the alleged violations. The main contention of plaintiff's complaint is that before Officer Sylvester executed the criminal complaint against plaintiff, he listened to the entire voicemail left on April 16, 2013, but only disclosed a portion of that voicemail in the complaint-warrant he prepared.

Defendants filed a motion to dismiss the federal complaint and the federal court granted that motion. The district court judge held that the amended federal complaint failed to plead facts establishing a federal constitutional violation and that the counts against the police department did not meet the pleadings standards of Rule 8 of the Federal Rules of Civil Procedure. Specifically, the district court held that Sylvester was entitled to qualified immunity insofar as his conduct did not violate clearly established and reasonably known statutes or constitutional rights. Accordingly, the district court held that for plaintiff to succeed on his federal section 1983 claim, he had to allege facts demonstrating that Sylvester deliberately, knowingly, or "with a reckless disregard for the truth" submitted an affidavit containing false statements or omissions to the issuing magistrate judge, and that such statements or omissions were material or necessary to the finding of probable cause. The district court then found that Sylvester did not knowingly or deliberately or with reckless disregard for the truth make false statements or omissions that created a falsehood in applying for the criminal warrant. In that regard, the district court held

Under the facts pleaded in the [a]mended [c]omplaint, no reasonable person could conclude that a judge would want to know that, in the remainder of the message, [p]laintiff threatened to go to the prosecutor and send the victims to jail. Indeed, this portion of the message does nothing to contradict or cast doubt on [p]laintiff's first threat coming to New Jersey and hanging the victims. The remainder of the message merely includes further threats to the victims (i.e., going to the prosecutor in an attempt to put the victims in jail).

The district court also held that Sylvester's qualified immunity protected Driscoll and the Roxbury Police Department from liability arising from his conduct.

After dismissing the federal claims, the district court declined to exercise supplemental jurisdiction over plaintiff's state law claims. Accordingly, those state law claims were dismissed without prejudice. Plaintiff appealed the dismissal of his federal claims against the individual defendants, but the United States Court of Appeals for the Third Circuit affirmed the dismissal. Paszkowski v. Roxbury Twp. Police Dep't, 581 F. App'x 149 (3d Cir. 2014).

In February 2014, while the federal appeal was pending, plaintiff filed a civil complaint against defendants in the Law Division. That state complaint alleged again the same facts that had been included in the federal complaint and the same state claims over which the federal district court declined to assume jurisdiction. Specifically, the state complaint alleged that plaintiff's arrest was false, malicious and unlawful and violated his rights under Article I, paragraph 7 of the New Jersey Constitution, and both sections of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; and in violation of Rule 3:3-1.

Defendants moved to dismiss the state complaint based on collateral estoppel. After hearing oral argument, the Law Division judge granted that motion holding that New Jersey afforded defendants the same qualified immunity as the federal law and that the federal court's conclusion that defendants were entitled to qualified immunity precluded plaintiff from re-litigating those issues in New Jersey. Thus, the Law Division judge dismissed with prejudice plaintiff's complaint. Plaintiff now appeals the dismissal of this complaint.

II.

On this appeal, plaintiff makes four arguments: (1) because federal and state courts use different standards for motions to dismiss, this court should consider the issue of dismissal on a de novo basis without regard to what the federal court decided; (2) there are issues of fact concerning whether there was probable cause to charge plaintiff with making terroristic threats; (3) state courts can disagree with factual and legal findings made by the federal courts; and (4) neither collateral estoppel, res judicata nor comity bars plaintiff's state law claims. We disagree with each of these arguments. We start with the issue of collateral estoppel because that is the controlling issue and because plaintiff is barred by collateral estoppel from re-litigating the federal court's holding that defendants did not knowingly or recklessly make a material omission in applying for the complaint and warrant.

A. The Collateral Estoppel Bar

We review the Law Division's dismissal under Rule 4:6-2(e) de novo, applying the same standard that the Law Division used. Major v. Maguire, 224 N.J. 1, 26 (2016). "[O]ur inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint" to determine "whether a cause of action is 'suggested' by the facts." Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Though we take "a generous and hospitable approach" in making that determination, "[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one." Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 286 (App. Div. 2014) (alteration in original) (first quoting Green, supra, 215 N.J. at 452, then quoting Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied, 208 N.J. 368 (2011)).

Collateral estoppel, which is also referred to as issue preclusion, "bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." In re Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013) (quoting N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114 (2011)). We apply federal law principles of collateral estoppel when the prior judgment resulted from a federal judgment. Id. at 67. In this case, it was a federal court that entered the order dismissing plaintiff's case, so we apply federal law, specifically law from the Third Circuit Court of Appeals. Gannon v. Am. Home Prods., Inc., 211 N.J. 454, 471 (2012). In the Third Circuit, collateral estoppel applies when the party asserting the doctrine shows

(1) the identical issue was decided in a prior adjudication; (2) there was a final judgment on the merits; (3) the party against whom the bar is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the bar is asserted had a full and fair opportunity to litigate the issue in question.

[Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 573 n.10 (3d Cir. 2002).]3

The issue to be precluded here is the determination of defendants' qualified immunity. Applying federal law, the district court held that defendants were entitled to a qualified immunity. New Jersey uses the same standard for determining qualified immunity as the federal courts. Morillo v. Torres, 222 N.J. 104, 116 (2015). The doctrine of qualified immunity, which extends to actions under federal section 1983 and the New Jersey Civil Rights Act, "shields law enforcement officers from personal liability for civil rights violations when the officers are acting under color of law in the performance of official duties." Id. at 107. Consequently, for purposes of analysis, when a police officer asserts qualified immunity against claims under both the New Jersey Civil Rights Act and federal section 1983 "the examination for both is the same." Id. at 116 (citing Gormley v. Wood-El, 218 N.J. 72, 113-15 (2014)). Accordingly, courts "do not differentiate between those claims . . . [in the] examination of the asserted affirmative defense" of qualified immunity. Ibid.

Exactly as in the federal courts, the qualified immunity applied under New Jersey law insulates "government officials performing discretionary functions generally . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ibid. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). This exacting standard "interposes a significant hurdle for plaintiffs seeking to recover for asserted violations of civil rights at the hands of law-enforcement," ibid., as it accords "'government officials breathing room to make reasonable but mistaken judgments' by 'protect[ing] all but the plainly incompetent or those who knowingly violate the law,'" City & Cty. of S.F. v. Sheehan, ___ U.S. ___, 135 S. Ct. 1765, 1774, 191 L. Ed. 2d 856, 867 (2015) (alteration in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 2085, 179 L. Ed. 2d 1149, 1160 (2011)). Qualified immunity is applied "to civil rights claims brought against law enforcement officials engaged in their discretionary functions, including arresting or charging an individual based on probable cause to believe that a criminal offense has occurred." Morillo, supra, 222 N.J. at 117.

The federal district court analyzed and rejected plaintiff's federal claims under the United States Constitution and section 1983 by ruling that defendant Sylvester was entitled to the protection of the applicable qualified immunity. Specifically, the district court found that the omitted portion of the April 16, 2013 voicemail was not material and would not have changed the municipal judge's finding of probable cause. The court also found that Sylvester's qualified immunity precluded liability against the remaining defendants because those claims were premised on Sylvester's alleged misconduct. These findings by the district court meet all the elements of collateral estoppel. As discussed, New Jersey uses the same standard for qualified immunity. The issue was fully litigated on the merits in the district court.4 The federal court determination is final because it was appealed and affirmed by the United States Court of Appeals for the Third Circuit. Finally, collateral estoppel is being asserted against plaintiff and plaintiff was also the plaintiff in the federal action.

In short, all the elements of collateral estoppel apply, and having conducted a de novo review, we agree with the Law Division that plaintiff's claims are barred by collateral estoppel.

B. Plaintiff's Arguments

A review of plaintiff's arguments demonstrates that none of those arguments undercut the holding that plaintiff's claims are barred by collateral estoppel. Plaintiff first argues that federal and New Jersey courts use different standards for motions to dismiss and, accordingly, neither the Law Division nor we are bound by the federal court finding. Assuming there is a difference between the two standards in the burdens of persuasion, that consideration cannot be use as "a license to substitute generalized concerns about the imposition of collateral estoppel when the clearly established elements have been met." Gannon, supra, 211 N.J. at 480. Further, the burden of persuasion was not "significantly heavier" in the federal action. Restatement (Second) of Judgments 28(4) (1982); see also O'Shea v. Amoco Oil Co., 886 F.2d 584, 593-94 (3d Cir. 1989) (noting section 28's consideration of differing burdens of persuasion); Gannon, supra, 211 N.J. at 476-77 (explaining that the Third Circuit "has commented on the equitable considerations found in the Restatement" but that those comments were "offered in the context of a broader, and more general, explanation of the governing legal principles"). We, therefore, find no basis to avoid applying collateral estoppel on that ground. Moreover, plaintiff's argument misses the fundamental point that the finding of qualified immunity is the same under federal and New Jersey law. See Morillo, supra, 222 N.J. at 107-08. Consequently, because the federal courts made a proper finding that qualified immunity attached, and because New Jersey uses the same standard for determining qualified immunity, the federal court's finding is binding.

Plaintiff also argues that he should have been allowed to conduct discovery to investigate Officer Sylvester's objective reasonableness in preparing and issuing the complaint-warrant. The federal district court relied on the facts pled in plaintiff's complaint to dismiss his claims based on qualified immunity. Read in the light most favorable to plaintiff, plaintiff's complaint alleges that it was a material omission for Officer Sylvester to not include the entire voicemail plaintiff left on April 16, 2013. The district court examined that contention and concluded that such an omission was not, as a matter of law, material to the issue of probable cause for the issuance of the criminal complaint of terroristic threats or the arrest warrant. Plaintiff has made no showing that there were any material factual disputes concerning that qualified immunity determination. Indeed, were we to apply a de novo review to the facts of this case, we would reach the same conclusion.

Plaintiff also argues that no reasonable officer could have found probable cause to charge him with terroristic threats because the threats he made were not imminent and were not made under circumstances that would cause a person to believe that it was likely to be carried out. The short and definitive answer to this argument is that the district court rejected that very argument and so do we.

Finally, plaintiff argues that state courts are free to disagree with the factual and legal findings of federal district and circuit courts. In making that argument, plaintiff misapplies a general concept of comity as it relates to the interpretation of federal law, see State v. Coleman, 46 N.J. 16, 35-37 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966), to the facts and procedures in this case. Here, the district court and circuit court did not make any new interpretations of federal law; rather, they applied established law to the facts as pled by plaintiff. The circumstances of this case do not give rise to a situation where we would disagree with or not follow the federal courts' findings.

Affirmed.

1 We use initials for the name of the victim to protect her privacy interests. R. 1:38-3(c)(12).

2 We discern the facts and procedural history from the record, viewing them in the light most favorable to plaintiff, the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). Certain of the facts are taken from the police report prepared by Officer Sylvester. That report is part of the record submitted by plaintiff and plaintiff referenced the report in his complaint. See Teamsters Local 97 v. State, 434 N.J. Super. 393, 414 (App. Div. 2014).

3 New Jersey uses a similar standard for applying collateral estoppel. See First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).

4 Plaintiff argues that the issue was not litigated because it was decided on a motion to dismiss. That argument is without merit. See Velasquez v. Franz, 123 N.J. 498, 507 (1991).