COSTINO v. ANDERSON et al, No. 1:2014cv06940 - Document 39 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/20/2016. (TH, )
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COSTINO v. ANDERSON et al Doc. 39 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY J OHN G. COSTINO, : Hon. J oseph H. Rodriguez Plaintiff, : Civil Action No. 14-6940 v. : POLICE OFFICER TONYA ANDERSON, et al., Defendants. OPINION : : This m atter is before the Court on a m otion to dism iss the Am ended Com plaint filed by Defendants Robert Taylor, Meghan Hoerner, Matthew Weintraub, Tina Kell, George Hallett, and Lynn Fram e 1 pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), which was joined by Defendants Little Egg Harbor Township and Tonya Anderson. The Court has reviewed the Defendant Robert L. Taylor, at all tim es relevant hereto, was the Cape May County Prosecutor. (Am . Compl., ¶9.) Defendant Meghan Hoerner, at all tim es relevant hereto, was a Cape May County Assistant Prosecutor. (Am . Com pl., ¶5.) Defendant Matthew D. Weintraub, at all tim es relevant hereto, was a Cape May County Assistant Prosecutor. (Am . Com pl., ¶6.) Defendant Tina Kell, at all tim es relevant hereto, was a Cape May County Assistant Prosecutor. (Am . Com pl., ¶7.) Defendant George Hallett, at all tim es relevant hereto, was a Detective in the Cape May County Prosecutor’s Office. (Am. Com pl., ¶3.) Defendant Lynn Fram e, at all tim es relevant hereto, was a Lieutenant Detective in the Cape May County Prosecutor’s Office. (Am. Com pl., ¶4.) The Amended Com plaint characterizes Anderson, Hallett, Fram e, and Abbattisciani as the Law Enforcement Defendants and Hoerner, Weintraub, Kell, and Taylor as Prosecutor Defendants. (Am. Com pl., ¶10 , 11.) 1 1 subm issions and decides the matter based on the briefs pursuant to Fed. R. Civ. P. 78(b). For the reasons stated here, the m otion will be granted in part and denied in part. Backgro u n d For m ore than 30 years, Plaintiff J ohn G. Costino was a practicing physician treating patients in his North Wildwood office. (Am . Com pl., ¶1 & 18.) In 20 0 7, when the events giving rise to this lawsuit began, Costino m aintained a successful North Wildwood m edical practice including general internal medicine, sports medicine, pain managem ent, acute care for injured patients, and workers com pensation related injuries. (Am . Com pl., ¶19.) At that tim e, Costino was the only pain m anagement physician in the Wildwoods; one of only two pain m anagem ent physicians in all of Cape May County. (Am. Com pl., ¶20 .) Costino’s m ultiple board certifications included being a Fellow of the Am erican Academy of Pain Managem ent. (Am . Com pl., ¶21.) Costino was certified through the Drug Enforcement Adm inistration to treat patients with opioid (heroin) addiction, and he was perm itted to prescribe Suboxone to treat patients with opioid addiction. (Am . Com pl., ¶22.) By virtue of Costino’s training, skill and reputation, he often received referrals from other physicians to provide treatm ent for pain m anagem ent to patients. (Am. Com pl., ¶23.) 2 Costino’s m edical practice apparently cam e under the scrutiny of the Cape May County Prosecutor’s office in 20 0 5, as a result of a statistical report identifying Costino as prescribing excessive am ounts of addictive pain m edications. (Am . Com pl., ¶24.) The fact that Costino was prescribing a significant am ount of addictive pain m edications is explained by Plaintiff as: (a.) A substantial portion of his practice was dedicated to pain m anagement patients and to the treatm ent of patients addicted to opioids; and (b.) On three occasions in 20 0 4 and 20 0 5, prescription pads were stolen from Costino’s office and used illegally to obtain addictive pain m edications. On each such occasion, Costino reported these thefts and the perpetrators were prosecuted by the authorities. (Am. Compl., ¶25.) Thus, Plaintiff contends the Cape May County Prosecutor’s office had actual knowledge of the reason why an excessive am ount of addictive pain m edication prescriptions m ay have appeared to have been prescribed by Costino. (Am. Compl., ¶26.) Nevertheless, in Decem ber 20 0 5, the Cape May County Prosecutor’s office sent an undercover detective to Costino’s office, posing as a heroin addict. (Am . Compl., ¶27.) The detective, Agent Landis, attem pted obtain a prescription for pain m edication. (Id.) Costino refused to prescribe the m edication because the patient presented as a heroin addict. (Id.) Instead, 3 Costino urged the patient to enter the Suboxone program for treatm ent of the heroin addiction. (Id.) After his undercover assignm ent concluded, Agent Landis wrote a report that was favorable to Costino, there being no evidence to support any allegation that Costino im properly prescribed m edication. (Id.) On April 12, 20 0 7, Defendant Little Egg Harbor Township Police Officer Tonya Anderson, wired with a recording device, sought treatm ent from Costino. (Am . Com pl., ¶2 & 29.) She posed as an exotic dancer who had been taking Percocet for pain without a valid prescription. (Id.) She asked to establish herself as a patient of Costino’s practice and to obtain a lawful prescription for Percocet. (Id.) Costino took a history and performed a physical exam ination on defendant Anderson. (Id.) Costino diagnosed Defendant Anderson with acute and chronic strain and sprain of the thoracolum bar spine, prim arily based upon her complaints relative to the physical dem ands of dancing on a stage for eight hours per night. (Id.) She signed Costino’s pain m anagem ent agreement and left the office with a valid prescription for 30 Percocet pills. (Id.) On August 3, 20 0 7, non-m oving Defendant DEA Special Agent Margarita Abbattiscianni, another undercover officer, also sought treatm ent from Costino posing as an exotic dancer. (Am. Com pl., ¶8 & 30 .) 4 Abbattiscianni complained of pain and difficulty with sleeping as a result of her job keeping her up som etimes until 6:0 0 am. (Id.) She also left the office with a valid prescription for 30 Percocet pills. (Id.) Defendants Anderson and Abbattiscianni treated with Costino on several occasions in 20 0 7, each time posing undercover as exotic dancers with pain sym ptoms appearing to justify the use of Percocet as treatment. (Am. Com pl., ¶31.) Defendants sought and obtained an Indictm ent against Costino, charging him with drug related offenses relating to the unlawful distribution of controlled substances. (Am . Com pl., ¶33.) In procuring the indictm ent, and later a superseding indictm ent alleging unlawful distribution of drugs and health insurance fraud, Defendants allegedly concealed exculpatory evidence from the Grand J ury and from Costino, knowingly procured and relied upon false certifications and testim ony from the Law Enforcement Defendants, and procured the alteration of evidence. (Am . Com pl., ¶34.) Specifically, Plaintiff alleges that Anderson falsely certified that she was pain free at the tim e of her treatm ent with Costino, when in fact, she presented to Costino with objective indicia of pain, and was actually treating with a chiropractor for her pain symptom s in her cervical, thoracic and lum bar spine. (Am . Com pl. ¶35.) The Prosecutor Defendants allegedly 5 concealed the fact that Anderson was treating with the chiropractor for her pain sym ptoms and failed to disclose this fact to the Grand J ury and/ or Costino. (Am. Compl. ¶36.) Further, Abbattiscianni allegedly presented to Costino com plaining of pain, but falsely testified that she did not m ention her pain symptom s to Costino during her office visit. (Am . Com pl. ¶37.) Her com plaint of pain was secretly recorded and was noted on the original official transcript of the secret recording. (Am. Com pl. ¶37.) However, Defendant Hallett, with the knowledge of the Prosecutor Defendants but without the knowledge of Costino, allegedly instructed the official transcriber of the secret recording to change the official transcript to om it the fact that Abbattiscianni had m entioned her pain during her office visit with Costino. (Am . Com pl. ¶38.) The altered transcript allegedly was utilized by the Prosecutor Defendants in connection with the subsequent prosecution of Costino. (Am . Compl. ¶39.) The Prosecutor Defendants and Defendant Hallett allegedly falsely inform ed the Grand J ury that Costino did not m aintain a m edical record of his treatment with Defendant Abbattiscianni, and therefore, that his treatment of her was com pletely undocum ented. (Am . Com pl. ¶40 .) The Prosecutor Defendants and Defendant Hallett knew this contention to be false, however, because Costino’s attorney had previously notified the Prosecutor Defendants of the 6 whereabouts of the file, and also of the fact that the Law Enforcement Defendants’ clerical m istake in m isspelling the patient’s nam e “Artiz” instead of “Ortiz” had led to the initial failure to locate the file. (Am . Com pl. ¶41.) In September 20 0 7, approxim ately 25 law enforcement officers storm ed Costino’s office, placed him in handcuffs, and seized records from his m edical practice. (Am. Com pl., ¶43.) At that tim e, Costino was arrested and taken into police custody. (Id.) There he rem ained until he was able to post $ 10 0 ,0 0 0 bail. (Id.) Additionally, Defendants allegedly provided false and m isleading evidence to the State of New J ersey Board of Medical Exam iners resulting in Costino being falsely accused of professional m isconduct and in the revocation of his m edical license. (Am . Com pl., ¶44.) After m ore than five years, the crim inal charges were tried before the Honorable Raymond A. Batten in the Superior Court of Cape May County. (Am . Com pl., ¶46.) Costino testified on his own behalf. (Am . Com pl., ¶47.) After deliberating less than two hours, on Novem ber 8, 20 12, the jury returned a verdict in favor of Costino and he was acquitted of all crim inal charges. (Am . Compl., ¶48.) Costino has filed a civil rights com plaint in this Court. Beside the individual Defendants described above, Plaintiff has nam ed Cape May 7 County and Little Egg Harbor Township as Defendants. In Count I of the Am ended Complaint, Costino has asserted claim s against the individual Defendants for the violation of his 4th and 14th Am endm ent rights (1) to be free from m alicious prosecution without probable cause and (2) to due process. He alleges that the Defendants worked in concert to secure false charges against him resulting in his arrest, confinem ent, and prosecution. Count II alleges deliberately indifferent policies, procedures, customs, and/ or practices as well as deliberately indifferent training and supervision by the “Government Defendants,” Cape May County and Little Egg Harbor Township, (see Am. Com pl. ¶ 12-13), in violation of Plaintiff’s 4th and 14th Am endm ent rights. Count II is not at issue in this m otion. In Count III, Costino asserts a claim against all Defendants for m alicious prosecution in violation of the New J ersey Civil Rights Act, N.J . Stat. Ann. § 10 :6-1. Count IV alleges m alicious prosecution by all Defendants in violation of N.J . Stat. Ann. § 2A:47A-1 and dem ands punitive dam ages. Defendants have m oved for dism issal of Count IV for failure to com ply with the notice requirem ents of New J ersey’s Tort Claim s Act. Plaintiff has not opposed this aspect of the m otion, so Count IV will be dism issed. Accordingly, the rem ainder of the Opinion addresses the claim s presented by Counts I and III of the Amended Com plaint. 8 Ap p licable Stan d ard s A m otion to dism iss for lack of subject m atter jurisdiction under Fed. R. Civ. P. 12(b)(1) m ust be granted if the court lacks subject m atter jurisdiction to hear a claim . In re Schering Plough Corp. Intron/ Tem odar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 20 12). When a defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden of establishing subject m atter jurisdiction for the sake of rem aining in federal court. Gould Elec., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 20 0 0 ). The Court applies this standard to the issue of im munity. See Young v. United States, 152 F. Supp. 3d 337, 344 (D.N.J . 20 15). A m otion to dism iss pursuant to Federal Rule of Civil Procedure 12(b)(1) m ay involve either a facial challenge to subject m atter jurisdiction or a factual challenge to the jurisdictional allegations. Gould Elec., 220 F.3d at 176. If the defendant’s attack is facial—i.e., “asserting that the com plaint, on its face, does not allege sufficient grounds to establish subject m atter jurisdiction”—a court m ust accept all allegations in the com plaint as true. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 20 0 6). Alternatively, a defendant m ay “challenge a federal court’s jurisdiction by factually attacking the plaintiff's jurisdictional allegations as set forth in the com plaint.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 9 (3d Cir. 1977). A factual challenge attacks the existence of a court’s subject m atter jurisdiction apart from any of the pleadings and, when considering such a challenge, a presum ption of truthfulness does not attach to a plaintiff's allegations.” Id.; see also Martinez v. U.S. Post Office, 875 F. Supp. 10 67, 10 70 (D.N.J . 1995). Alternatively, Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 2 See Chester County Interm ediate Unit v. Pa. Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether Although a district court m ay not consider m atters extraneous to the pleadings, a document integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). 2“ 10 the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court simply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (20 0 7). “A claim has facial plausibility 3 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Id. 3 11 Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that are no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by m ere conclusory statements, do not suffice.”). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556. “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679. 12 D is cu s s io n 4 2 U .S.C. § 19 8 3 Plaintiff’s Constitutional claim s are governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. See 42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing Baker, 443 U.S. at 145, n.3). 13 To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that plaintiff was deprived of his rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). A sim ilar analysis m ay be m ade regarding any claim under the New J ersey Civil Rights Act, as the two generally are interpreted in parallel. See Ingram v. Twp. Of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J . 20 12); Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J . 20 11). Therefore, the Court will not undertake a separate analysis of Plaintiff’s claim under the New J ersey Civil Rights Act presented by Count III. Ele ve n th Am e n d m e n t So ve re ign Im m u n ity Defendants initially m ove for dism issal under Federal Rule of Civil Procedure 12(b)(1), arguing that this Court lacks subject matter jurisdiction because the Defendants enjoy sovereign im m unity under the Eleventh 14 Am endm ent. The Eleventh Am endment incorporates a general principle of sovereign im m unity that bars citizens from bringing suits for dam ages against any State in federal court. Pennhurst State Sch. & Hosp. v. Halderm an, 465 U.S. 89, 10 0 -0 1 (1984). Sovereign im m unity extends to State agencies and State officers, “as long as the state is the real party in interest.” Fitchik v. N.J . Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989). It does not extend to counties and m unicipalities. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 80 7, 813-14 (3d Cir. 1991) (“[A]lthough political subdivisions of a state, such as counties and m unicipalities, fall within the term ‘State’ as used in the Fourteenth Am endm ent, political subdivisions are not ‘State[s]’ under the Eleventh Am endment.”). 4 Am e n ability to Su it as “Pe rs o n s ” u n d e r § 19 8 3 an d th e N JCRA The United States Supreme Court has held that “neither a State nor its officials acting under their official capacities are ‘persons’ am enable to suit under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 4 Additionally, application of the Eleventh Am endm ent involves factual issues that cannot be resolved from the face of the Complaint. Mortensen, 549 F.2d at 891. Such issues include (1) whether paym ent of any judgment against the defendants would com e from the State treasury, (2) the status of the prosecutor’s office under State law, and (3) the county prosecutor’s degree of autonom y. See Fitchik, 873 F.2d at 659. 15 (1989). As such, an em ployee of the State nam ed as a defendant in a civil rights action m ay be held liable only if that person has personal involvem ent in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons’ within the m eaning of § 1983”). “Local governm ent bodies and their officials, by contrast, are regarded as ‘persons’ am enable to suit under § 1983.” Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850 , 854 (3d Cir. 20 14) (citing Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978)). “When county prosecutors engage in classic law enforcement and investigative functions, they act as officers of the State.” Colem an v. Kaye, 87 F.3d 1491, 150 5 (3d Cir. 1996). “When county prosecutors perform adm inistrative functions ‘unrelated to the duties involved in crim inal prosecution,’ however, they act as county officials.” Lagano, 769 F.3d at 855 (quoting Colem an, 87 F.3d at 150 5-0 6). Moving Defendants have argued that they are not “persons” amenable to suit under § 1983 because the county prosecutors engaged in classic law enforcem ent functions are arms of the State. Plaintiff acknowledges this, and states that his claim s against the moving Defendants have been brought only in their individual capacities. See Am. Com pl. ¶ 53. As such, 16 Counts I and III will be analyzed only insofar as they are asserted against m oving Defendants in their individual capacities. Im m u n itie s Individuals named as defendants in their personal capacities are am enable to suit under § 1983 as “persons.” Lagano, 769 F.3d at 856. “Officials sued in their personal capacities . . . may assert personal im m unity defenses.” Hafer, 50 2 U.S. at 25. Defendants Robert Taylor, Meghan Hoerner, Matthew Weintraub, and Tina Kell in their individual capacities argue that they enjoy absolute prosecutorial im m unity. Where a prosecutor acts within the scope of his or her duties “in initiating a prosecution and in presenting the State’s case, the prosecutor is im m une from a civil suit for dam ages under § 1983.” Imbler v. Pachtm an, 424 U.S. 40 9, 430 (1976) (affirm ing dism issal of plaintiff’s § 1983 suit against district attorney grounded in part upon the district attorney’s alleged knowing use of perjured testim ony). This im m unity is lim ited to activities that are “intim ately associated with the judicial phase of the crim inal process.” Id. (utilizing a “functional approach” to include the alleged knowing use of false testim ony at trial and the alleged deliberate suppression of exculpatory evidence). See also Yarris v. Delaware County, 465 F.3d 129, 137 (3d Cir. 20 0 7) (claim s based on failure to turn over 17 exculpatory evidence are shielded by absolute im m unity); Rose v. Bartle, 871 F.2d 331, 344 (3d Cir. 1989) (solicitation of testim ony, even where false, for use in grand jury proceedings is im m unized as encom passed within the preparation necessary to present a case). “By contrast, a prosecutor acting in an investigative or adm inistrative capacity is protected only by qualified imm unity.” Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992). “In addition, there may be instances where a prosecutor’s behavior falls com pletely outside the prosecutorial role. In that case, no absolute im m unity is available.” Id. (citing Rose, 871 F.2d at 346). “A prosecutor bears the heavy burden of establishing entitlem ent to absolute im m unity.” Odd v. Malone, 538 F.3d 20 2, 20 7 (3d Cir. 20 0 8) (citations and quotation om itted). Plaintiff has alleged that the individual “Defendants concealed exculpatory evidence from the Grand J ury and from Costino, knowingly procured and relied upon false certifications and testim ony from the Law Enforcement Defendants, and procured the alteration of evidence.” (Am . Com pl. ¶ 34.) 5 Notably, Plaintiff’s claim is not based upon the m oving These Defendants also allegedly “provided false and m isleading evidence to the State of New J ersey Board of Medical Exam iners, resulting in Costino being falsely accused of professional m isconduct and in the revocation of his m edical license.” (Am . Com pl. ¶ 35.) While this conduct is outside the realm of the judicial phase of the crim inal proceeding, the result before the 5 18 Defendants’ decision to initiate prosecution. Even if the prosecutors lacked a good faith belief that any wrongdoing had occurred, that decision would be absolutely im m une from suit. See Kulwicki, 969 F.2d at 1463-64. Sim ilarly, however, all of the acts com plained of are shielded by prosecutorial im m unity. Further, the Am ended Com plaint details no facts specific to Taylor, Hoerner, Weintraub, or Kell. The m otion to dism iss as to these Defendants is granted. Next, Defendants George Hallett and Lynn Frame in their individual capacities argue that they enjoy qualified im m unity. The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, government officials are im m une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Board was not favorable to Costino, so this allegation does not support a m alicious prosecution claim . 19 Katz, 533 U.S. 194, 20 1 (20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified im m unity analysis should be addressed first in light of the circum stances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (20 0 9). This doctrine “balances two im portant interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the government official’s error is a m istake of law, a m istake of fact, or a m istake based on mixed questions of law and fact. Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 20 74, 20 85 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 20 2 (20 0 1) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his 20 conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im m unity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] issue, im m unity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone is whether the conduct of the official was reasonable at the time it occurred.); Kulwicki, 969 F.2d at 1463 (“Objective reasonableness is measured by the am ount of knowledge available to the officer at the tim e of the alleged violation.”). Finally, because qualified im m unity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). The Am ended Complaint alleges Defendants Anderson and Abbattiscianni concealed facts from the Grand J ury and Hallett actually altered evidence presented to the Grand J ury, thereby introducing fabricated evidence to engineer a false arrest and prosecute unfounded charges. If true, such would constitute a violation of clearly established law that would have been apparent to a reasonable officer. See, e.g., Orsatti v. New J ersey State Police, 71 F.3d 480 , 483 (3d Cir. 1995) (as of 1989, “the 21 right to be free from arrest except on probable cause was clearly established”). The m otion to dism iss on grounds of qualified im m unity as to these Defendants m ust therefore be denied at this stage of the litigation. Plaintiff has m ade no factual allegations as to Defendant Fram e that warrant her rem aining in the case. Malicio u s Pro s e cu tio n Claim Its e lf As to the rem aining Defendants, the Court finds that the essential elements of m alicious prosecution have been sufficiently alleged. To establish m alicious prosecution under § 1983, a plaintiff m ust establish that: (1) the defendant initiated a crim inal proceeding; (2) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding; (3) the crim inal prosecution resulted in plaintiff's favor; (4) the proceeding was initiated without probable cause; and (5) the defendant acted m aliciously or for a purpose other than bringing the plaintiff to justice. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 20 14); DiBella v. Borough of Beachwood, 40 7 F.3d 599, 60 1 (3d Cir. 20 0 5); Santiago v. City of Vineland, 10 7 F. Supp. 2d 512, 566 (D.N.J . 20 0 0 ). Probable cause m ay be subverted where an officer “knowingly and deliberately, or with a reckless disregard for the truth, m ade false 22 statements or om issions that create a falsehood” and “[s]uch statements or om issions are m aterial, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 20 0 0 ). In seeking a charge or arrest warrant, officers may not rely on facts of which they had a “high degree of awareness of [their] probable falsity”—meaning that, “when viewing all the evidence, [they] m ust have entertained serious doubts as to the truth of his statem ents or had obvious reasons to doubt the accuracy of the inform ation ... reported.” Id. See also Halsey, 750 F.3d at 289 (“When falsified evidence is used as a basis to initiate the prosecution of a defendant, or is used to convict him , the defendant has been injured regardless of whether the totality of the evidence, excluding the fabricated evidence, would have given the state actor a probable cause defense in a m alicious prosecution action that a defendant later brought against him .”). In this case, probable cause found by the grand jury “m ay be rebutted by evidence that the presentm ent was procured by fraud, perjury or other corrupt m eans.” Rose, 871 F.2d at 353. It is, therefore, “a sufficiently factladen issue as to typically be a question for the jury.” Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 638 (D.N.J . 20 11). 23 Co n clu s io n For these reasons, the m otion to dism iss is granted as to Defendants Robert Taylor, Meghan Hoerner, Matthew Weintraub, Tina Kell, and Lynn Fram e. The m otion is denied as to Defendants George Hallett, Little Egg Harbor Township, and Tonya Anderson. Defendants Cape May County and Margarita Abbattiscianni have not m oved for dism issal and rem ain in the case. An Order will accom pany this Opinion. Dated: Decem ber 20 , 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 24