COSTINO v. ANDERSON et al, No. 1:2014cv06940 - Document 83 (D.N.J. 2018)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 9/26/2018. (rtm, )

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COSTINO v. ANDERSON et al Doc. 83 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 m otions for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56 filed by rem aining Defendants Little Egg Harbor Township and its Police Officer Tonya Anderson [Doc. 63] and Cape May County Prosecutor’s Office Detective George Hallett [Doc. 64]. 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 otions will be granted. Backgro u n d The facts of this case have been outlined in prior opinions of this Court. 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 1 Dockets.Justia.com 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 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 medications was explained by Plaintiff as: (a.) A substantial portion of his practice was dedicated to pain managem ent 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 2 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 . Com pl., ¶25.) 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 . Com pl., ¶27.) The detective attempted 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.) The detective therefore wrote a report favorable to Costino, indicating that there was no evidence to support an allegation that Costino im properly prescribed medication. (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.) Anderson told Plaintiff that she was on her feet all day and it was hard for her to “unwind” at the end of the day. (Tr. from Audio of Anderson’s 4/ 12/ 0 7 Undercover Visit at ¶¶ 45– 48.) She also said that “one of the girls that I work with at a previous place had told m e to com e here she . . . she I 3 think she had given m e percocets and I, I had taken a few um just to kind of unwind after work[.]” (Id. at ¶¶ 50 – 52.) Plaintiff told Anderson that Percocet was a pain m edication that was “not for relaxation,” and that she should not “want som ething for pain which is addictive unless you’ve really got a real problem .” (Id. at ¶ 55; ¶¶ 59– 60 .) Anderson said that Percocet worked for her before, and Plaintiff asked her if she was addicted, to which she replied in the negative. (Id. at ¶¶ 92– 98.) Plaintiff then asked Anderson if she had any pain. (Id. at ¶ 10 3.) She responded, “No no I wouldn’t say pain. I don’t have any . . . .” (Id. at ¶ 10 4.) He later asked her if she had any spine issues or any “m ajor issues at all?” (Id. at ¶¶ 173– 74.) She responded, “No.” (Id. at ¶ 175.) Plaintiff diagnosed Anderson with “acute lum bar and thoracic strain and sprain” in Anderson’s chart, (see Anderson’s chart notes from 4/ 12/ 0 7 visit), and prescribed her thirty 7.5 mg tablets of Percocet— telling her it should last her about 6 weeks. Id. 20 4– 20 5; (see copy of the prescription dated April 12, 20 0 7). Less than three weeks later, on May 2, 20 0 7, Anderson returned for m ore Percocet. (Tr. from Audio of Anderson’s 5/ 2/ 0 7 Undercover Visit.) Plaintiff wrote her a six week prescription. (Id.) When asked if she was sore after a night of dancing, Anderson told Plaintiff that “it’s m ore the relaxation” and she has no discom fort. (Id. at 10 – 16.) During the 4 encounter, Plaintiff told Anderson, “[y]ou really don’t have any other m edical issues I m ean you’re basically a healthy gal.” (Id. at 84– 85.) He then wrote her another prescription for thirty 7.5 mg tablets of Percocet and warned her not to tell her girlfriends that she has it. (Id. at 121– 22; copy of prescription dated May 2, 20 0 7.) Plaintiff again noted in Anderson’s chart that she suffered from acute lum bar sprain and strain. (Anderson’s chart notes from 5/ 2/ 0 7 visit.) Anderson returned for m ore drugs on J une 7, 20 0 7—this tim e asking for a stronger prescription of 10 m g because she wanted som ething “a little stronger that lasts a little longer[.]” (Tr. from Audio of Anderson’s 6/ 7/ 0 7 Undercover Visit, p. 1.) Plaintiff responded, “Well you can go to 10 s yeah” (referring to 10 m g). (Id.) Plaintiff again wrote Anderson a prescription— this tim e for the 10 m g strength. (See copy of prescription dated J une 7, 20 0 7.) The next undercover visit was on J une 26—less than a m onth later. Anderson com plained that she did not notice a difference between the 7.5 m g pills and the 10 m g pills. (Tr. from Audio of Anderson’s 6/ 26/ 0 7 Undercover Visit, p. 2.) Plaintiff responded “you becom e a little tolerant.” (Id.) Anderson left with another prescription for thirty tablets of 10 m g Percocet. (See copy of prescription dated J une 26, 20 0 7.) Two and half 5 weeks later, Anderson left with another prescription for thirty tablets of 10 m g Percocet. (See copy of prescription dated J une 26, 20 0 7.) During the next visit on August 3, 20 0 7, Anderson was accom panied by another undercover agent, Margarita Abbattiscianni, who was posing as a stripper named Maggie Ortiz. During this visit, Plaintiff asked Abbattiscianni “what’s the matter?” She responded, “Well, I m ean it’s basically the same as Tonya here[,]” (referring to Anderson), “[j]ust I’m up all night and I just need something to just bring me down a little bit during the day.” (Tr. of Audio Recording from 8/ 3/ 0 7 at 48:1– 7.) Later in the exam ination the following exchange took place between Plaintiff and Abbattiscianni: Plaintiff: You’re pretty healthy, are you? Well I guess you are, right? Abbattiscianni: I sure am. I’m one hundred percent healthy. Plaintiff: No m ajor issues with the dance? Abbattiscianni: No, none whatsoever. .... Plaintiff: No surgery ever, huh? Abbattiscianni: No surgery, no. Plaintiff: And no m edical issues or anything? Abbattiscianni: No, none. .... Plaintiff: Any knee issues or— Abbattiscianni: Oh, no. Plaintiff: —ankle issues— Abbattiscianni: No. Plaintiff: —or anything like that? Abbattiscianni: Nothing. Plaintiff: No? 6 Abbattiscianni: Plaintiff: Abbattiscianni: Plaintiff: I feel good. That’s terrific. And really, no history of anything? Nothing. So, you’re basically just as norm al as norm al can be, right? Abbattiscianni: Yes, very norm al. (Id. 60 :23– 62:18.) Following this interaction, Plaintiff listened to Abbattiscianni’s chest and rem arked, “I m ean you’re clear as a bell, too. Do you want to do the same thing? Do you want to take one of these Percocets?” (Id. at 63:1– 3.) Abbattiscianni said “Yes, please.” (Id.) Mom ents later Plaintiff began questioning Abbattiscianni again about pain: Plaintiff: Do you have any back pain every—every now and then? Abbattiscianni: No back pain whatsoever, nothing. .... Plaintiff: Well, let m e just caution you to be careful with the m edication, okay? Abbattiscianni: Okay. Plaintiff: J ust take, you know, one a day. Abbattiscianni: Uh-huh. Plaintiff: See, taking one a day you’ll never have any trouble with the m edication. Abbattiscianni: Right. Plaintiff: You know, you’ll never get addicted or habituated. Do you know what I m ean? Abbattiscianni: Right. Plaintiff: J ust take it when you’re done your work. You know, and it’ll just relax you— Abbattiscianni: J ust relax, yeah. Plaintiff: —and takes the pain away. Abbattiscianni: Uh-huh, uh-huh. Plaintiff: You know, I’m sure you get these acute strains and sprains and this and that. 7 Abbattiscianni: You know what, I’m pretty flexible, so there’s not m uch pain. I do a lot of exercise, so I’m good. (Id. at 63:16– 64:20 .) Anderson and Abbattiscianni each left with a prescription for 60 10 m g tablets of Percocet—twice as m uch as the previous visits. (See copy of Abbattiscianni’s prescription dated August 3, 20 0 7; copy of Anderson’s prescription dated August 3, 20 0 7.) An Indictm ent was issued against Costino, charging him with drug related offenses relating to the unlawful distribution of controlled substances. (Am . Com pl., ¶33.) Costino was arrested in September of 20 0 7 and taken into police custody until he was able to post $ 10 0 ,0 0 0 bail. (Am . Com pl., ¶43.) After m ore than five years, the crim inal charges were tried before the Honorable Raym ond 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 November 8, 20 12, the jury returned a verdict in favor of Costino and he was acquitted of all crim inal charges. (Am . Com pl., ¶48.) Costino has filed a civil rights com plaint in this Court. In Count I of the Am ended Complaint, Costino 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 alleged that the individual Defendants worked in concert to 8 secure false charges against him resulting in his arrest, confinem ent, and prosecution. Count II alleged deliberately indifferent policies, procedures, custom s, and/ or practices as well as deliberately indifferent training and supervision by Little Egg Harbor Township, (see Am. Compl. ¶ 12-13), in violation of Plaintiff’s 4th and 14th Amendm ent rights. In Count III, Costino asserts a claim for m alicious prosecution in violation of the New J ersey Civil Rights Act, N.J . Stat. Ann. § 10 :6-1. Count IV has been dism issed from the case, as have all claim s against previously named Defendants Margarita Abbattiscianni, Robert Taylor, Meghan Hoerner, Matthew Weintraub, Tina Kell, Lynn Fram e, and Cape May County. Ap p licable Stan d ard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter sum m ary judgment in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, 9 docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex, 477 U.S. at 323. Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Anderson, 477 U.S. at 256-57. “A nonmoving party m ay not ‘rest upon m ere 10 allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). D is cu s s io n 4 2 U .S.C. § 19 8 3 11 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). 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.” 12 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). 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, 13 “[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 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”). 14 Qu alifie d Im m u n ity 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, governm ent officials are im m une from suit in their individual capacities unless, “taken in the light most 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. 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 15 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 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 16 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). 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 Little Egg Harbor Township. The Am ended Complaint does not identify conduct of a m unicipal decisionm aker or specify a custom or policy of Little Egg Harbor Township that could form the basis for m unicipal liability. Rather, the Am ended Complaint 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. 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 17 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 the instant m otion. Moreover, Plaintiff has not supplied the Court with any argument that would tend to allow the claim to survive. Accordingly, sum mary judgment will be granted in favor of Little Egg Harbor Township. The Court is left with Counts I and III for m alicious prosecution against Defendants Anderson and Hallett. Plaintiff has not opposed Hallett’s argum ent that m alicious prosecution claim s against a public em ployee are not subject to the NJ CRA but instead are governed by the New J ersey Tort Claim s Act (“NJ TCA”). See Thigpen v. City of East Orange, 974 A.2d 1126, 1133 (N.J . Super. Ct. App. Div. 20 0 9). This Court previously dism issed the m alicious prosecution claim s brought under the NJ TCA because Plaintiff failed to com ply with the Act’s notice requirem ents. Sum m ary judgment will be granted as to Count III. 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 18 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 is defined in terms of facts and circum stances sufficient to warrant a prudent to believe that the suspect had com m itted or was com m itting an offense. Sharrar v. Felsing, 128 F.3d 810 , 817-18 (3d Cir. 1987). A grand jury indictm ent is prim a facie evidence of probable cause. Helm y v. J ersey City, 836 A.2d 80 2, 80 7 (N.J . 20 0 3); Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989). However, probable cause m ay be subverted where an officer “knowingly and deliberately, or with a reckless disregard for the truth, m ade false 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”— m eaning 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 19 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.”). Plaintiff argues that Anderson lacked probable cause to believe he com m itted a crim e because Anderson presented Plaintiff with “indicia of pain” to justify the Percocet prescription. After an exam ination, and considering Anderson’s description of “the rigors of her occupation as a stripper” (Pl. Br., p. 36), Plaintiff diagnosed Anderson with m uscular strain and sprain. Plaintiff also relies on the facts that Anderson signed his pain m anagement agreem ent and had seen a chiropractor on one occasion near the tim e of her undercover visit to his office. These argum ents fail to defeat the presum ption of probable cause that stem from the grand jury indictm ent. In addition, Plaintiff has not shown that Anderson or Hallett acted m aliciously or for a purpose other than bringing him to justice or that either Defendant was responsible for 20 initiating the crim inal proceeding against him . Summ ary judgm ent will be granted. Co n clu s io n For these reasons, the m otions for summ ary judgm ent pursuant to Fed. R. Civ. P. 56 filed by rem aining Defendants Little Egg Harbor Township and its Police Officer Tonya Anderson [Doc. 63] and Cape May County Prosecutor’s Office Detective George Hallett [Doc. 64] will be granted. An Order will accom pany this Opinion. Dated: Septem ber 26, 20 18 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 21

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