COSTINO v. ANDERSON et al, No. 1:2014cv06940 - Document 57 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 10/4/2017. (rtm, )
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COSTINO v. ANDERSON et al Doc. 57 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 Defendant Cape May County1 pursuant to Fed. R. Civ. P. 12(b)(6). The Court has reviewed the 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. Also nam ed as Defendants were Robert L. Taylor, the Cape May County Prosecutor (Am. Com pl., ¶9); Meghan Hoerner, a Cape May County Assistant Prosecutor (Am . Com pl., ¶5); Matthew D. Weintraub, a Cape May County Assistant Prosecutor (Am. Compl., ¶6); Tina Kell, a Cape May County Assistant Prosecutor (Am. Compl., ¶7); George Hallett, a Detective in the Cape May County Prosecutor’s Office (Am . Compl., ¶3); Lynn Frame, a Lieutenant Detective in the Cape May County Prosecutor’s Office (Am. Com pl., ¶4); and Little Egg Harbor Police Officer Tonya Anderson (Am . Com p., ¶2). The Am ended 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.) Along with Cape May County, Little Egg Harbor Township was named as a “Government Defendant.” (Am . Compl., ¶13, 14.) 1 1 Dockets.Justia.com 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.) 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 2 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, 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 3 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 .) 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 4 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 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 5 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 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” 6 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. In Count I of the Am ended Complaint, Costino has asserted claims 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 7 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. 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. Count IV has been dism issed from the case, as have all claim s against Defendants Robert Taylor, Meghan Hoerner, Matthew Weintraub, Tina Kell, and Lynn Fram e. Previous m otions to dism iss have been denied as to Defendants George Hallett, Little Egg Harbor Township, and Tonya Anderson. Ap p licable Stan d ard s Plaintiff claim s that the Defendant’s motion to dism iss is untim ely. However, to avoid Rule 12(b)’s tim ing provision, district courts within the Third Circuit have construed untim ely m otions to dism iss as m otions for judgm ent on the pleadings under Fed. R. Civ. P. 12(c). See We the People 8 in Republic Clarissa Aline v. Tem ple Univ. Hosp., 20 0 4 WL 20 0 4370 , at *1 (E.D. Pa. Aug. 8, 20 0 4). The Court does so here. “After the pleadings are closed—but early enough not to delay trial—a party m ay m ove for judgm ent on the pleadings.” Fed. R. Civ. P. 12(c). When considering a Federal Rule of Civil Procedure 12(c) motion for judgm ent on the pleadings based on the defense that the plaintiff has failed to state a claim , courts analyze the m otion under the same legal standards that apply to a m otion to dism iss for failure to state a claim under Rule 12(b)(6). Revell v. Port Auth. of N.Y. & N.J ., 598 F.3d 128, 134 (3d Cir. 20 10 ) (citing Turbe v. Gov’t of the V.I., 938 F.2d 427, 428 (3d Cir. 1991)); see also Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 20 0 4) (“There is no m aterial difference in the applicable legal standards.”). 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 9 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 the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 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 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“ 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 10 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. 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.”). 11 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. 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. 12 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). 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). 13 Mu n icip al Liability A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a governm ent entity m ay be liable for its agent’s actions upon a dem onstration that a policy or custom of the m unicipality caused, or was a “m oving force” behind, the alleged violation of Plaintiff’s rights. Kentucky v. Graham , 473 U.S. 159, 166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to prevail against the government entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). A plaintiff cannot seek to hold a m unicipality liable for dam ages where the officer has inflicted no constitutional harm . Acum ed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 217 n.12 (3d Cir. 20 0 9) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, before addressing deliberate indifference and causation, a court m ust first address whether there was a constitutional violation at all. See Grazier, 328 F.3d at 124 (“m unicipal liability requires constitutional harm ”); cf., Thom as, 749 14 F.3d at 223 (“The parties do not challenge the existence of . . . a constitutional violation on appeal.”). Moreover, the United States Supreme Court has held that “neither a State nor its officials acting under their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). As such, an em ployee of the state named 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”). An alys is A thorough review of the Am ended Com plaint, as outlined above, fails to reveal any facts sufficient to state a plausible claim against Cape May County. The Amended Com plaint does not identify conduct of a m unicipal decisionm aker or specify a custom or policy of Cape May County that could form the basis for m unicipal liability. Rather, the Am ended Com plaint states: The Government Defendants developed and m aintained policies, procedures, customs and/ or practices exhibiting deliberate indifference to the constitutional rights of citizens, which were m oving forces behind and proxim ately caused the violations of Costino’s constitutional rights as aforesaid. 15 The Government Defendants have created and tolerated an atm osphere of lawlessness, and have developed and m aintained longstanding, departm ent-wide customs, law enforcem ent related policies, procedures, custom s, practices, and/ or failed to properly train and/ or supervise their em ployees in a m anner amounting to deliberate indifference to the constitutional rights of Costino and of the public. The deliberately indifferent training and supervision provided by the Governm ent Defendants resulted from a conscious or deliberate choice to follow a course of action from am ong various alternatives available to them and were m oving forces in the constitutional injuries suffered by Costino. (Am . Com pl., ¶ 66-68.) These conclusory allegations are unsupported by any facts alleged and therefore are insufficient to state a plausible Monell claim to survive a m otion to dism iss. Accordingly, the motion to dism iss the Am ended Complaint filed by Defendant Cape May County will be granted. Co n clu s io n For these reasons, Defendant Cape May County will be dism issed as a Defendant. An Order will accom pany this Opinion. Dated: October 4, 20 17 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 16
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