HOF v. JANCI et al, No. 3:2017cv00295 - Document 22 (D.N.J. 2017)

Court Description: OPINION filed. Signed by Judge Anne E. Thompson on 9/7/2017. (mmh)

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HOF v. JANCI et al Doc. 22 RECEIVED NOT FOR PUBLICATION UNITED DISTRICT COURT DISTiCT OF NEW JERSEY SEP O 7 2017. AT 8:30 _.M WILLIAM T. WALSH CLEAi< RAYMOND HOF, Civ. No. 17-295 Plaintiff, v. OPINION JAMES JANCI, ESQ., HUNTERDO COUNTY PROSECUTOR'S OFFIC , JOHN DOE 1-10, GOVERNMENTAL AG 'NCY 110 Defendants. THOMPSON. U.S.D.J. TRODUCTION This matter comes before the 1ourt on a motion to dismiss brought by Defendants James Janci, Esq. ("Defendant Janci") and Hunterdon County Prosecutor's Office ("Defendant HCPO") (collectively"Defendants"). (ECF No. 13.) Plaintiff Raymond Hof("Plaintiff') opposes. (ECF No. 14.) The Court has decided them tion after considering the parties' written submissions and oral argument pursuant to Local Civil ule 78.l{b). For the following reasons, Defendants' motion is granted in part. BACKGROUND Plaintiff brings this civil rights iuit against Defendants Janci and HCPO. Plaintiff's allegations are as follows. Defendant HCPO is a County Agency that prosecuted Plaintiff and Defendant J anci was First Assistant Plsecutor in the Hunterdon County Prosecutor's Office at 1 Dockets.Justia.com all times relevant to the Complaint. (Compl., ECF No. 1 at "Parties",, 2"""""3.) 1 Plaintiff was subject to Community Supervision for Life (''CSL") due to a 2001 conviction. (Id. at "Factual Allegations Common to All Counts", 1.) On or about May 29, 2014, a Hunterdon County Grand Jury indicted Plaintiff for violating a c ndition of CSL. (Id.) On or about August 7, 2014, a Hunterdon County Grand Jury also Plaintiff for Terroristic Threats, Possession of Weapons, Possession of Weapons for bnlawful Purposes, and two counts of Criminal Restraint arising out of an alleged domestic violrce incident on June 12, 2014. (Id.) The Criminal Judge granted Plaintiff bail and did not issue a "no-contact order" for the alleged victim of the domestic violencj, Plaintiff's girlfriend. (Id. at "Factual Allegations Common to All Counts", 3.) Plaintiff planned to live with his girlfriend. (Id. at "Factual Allegations Common to All Counts" Plaintiff was set to be released on January 16, 2015. (Id.) However, on that same day, Defe dant Janci purposefully lied to Plaintiffs parole officer, and stated that there was a no-contact llrder in place and that Plaintiff would violate the nocontact order upon his release. (Id.) Pl intiff's parole officer then "attempted to pressure [Plaintiff] into signing papers stating tliat he would stay away from his girlfriend and enroll in a halfWay house." (Id. 4.) Plaintiff refufed, was arrested for violating CSL, and was imprisoned until February 20, 2015. (Id. ft:4-5.) Plaintiff was unable to see his girlfriend for more than a year. (Id. , 5). Plaintiff further alleges that Defendant HCPO is the ultimate policymaking authority for its employees; that Defendant HCPO ij legally responsible for the hiring, training, retention, supervision, and discipline of its empl lyees; that it is legally responsible for the acts of its 1 The Complaint does not include page numbers, and the numbering of the paragraphs restarts with each individual section of the Complaint. Therefore, for citation purposes, the Court will refer to the title of the section of the C mplaint before referring to the paragraph number. 1 2 employees based on principles of ageney, respondeat superior, vicarious liability, and also for its direct participation in the violation of,laintiffs rights. (Id. at "Additional Facts Regarding Liability'' mf 1-4.) Defendant J anci' s wrongful actions were undertaken in the absence of reasonable good faith, with actual mali e, and within the scope of his employment with i I Defendant HCPO. (Id. 5-6.) i I Plaintiff's Complaint includes ·x counts: (1) Violation of 42 U.S.C. § 1983; (2) : I Violation of State Civil Rights Law and 42 U.S.C. § 1988; (3) Malicious Prosecution/Malicious Abuse of Legal Process; (4) isrepresentation Causing Damage; (5) Fraud; (6) False Imprisonment. (See Compl.) Plaintiff led the Complaint on January 16, 2017 (id.), bringing claims against Defendant HCPO and Defendant Janci in both his official and individual capacity. (Id. at "Parties" ifif 2--3.) The Clerk of ourt entered default for failure to plead or otherwise defend against Defendant HCPO on Fe ruary 14, 2017 and against Defendant Janci on February 24, 2017. (See ECF Entry dated Febru8!fY 14, 2017; ECF No. 7.) On April 5, 2017, this Court granted the motion to vacate default subsequently filed the motion mL by Defendants. (ECF Nos. 9, 10.) Defendants dismijs presently before the Court. (ECF No. 13.) Oral argument was held on August 24, 201 J I LEGAL STANDARDS Under Federal Rule of Civil Procedure 12(b)(l}, a Defendant may move at any time to dismiss the Complaint for lack of subjebt matter jurisdiction on either facial or factual grounds. l Gould Electronics Inc. v. United States 220 F .3d 169, 176 (3d Cir. 2000) (citing Mortensen v. I First Fed. Sav. & Loan Ass 'n, 549 F.2dl 884, 891 (3d Cir. 1977)). In analyzing a facial challenge, a court "must consider only the allegatilns of the complaint and documents attached thereto, in the light most favorable to the plaintiff. ' Id. (citing Mortensen, 549 F .2d at 891 ). In considering a 3 factual challenge, however, a court "m[y consider evidence outside of the pleadings." Id. (citing Mortensen, 549 F.2d at 891). Regardle s of the type of challenge, the plaintiff bears the ''burden of proving that the court has subject J tter jurisdiction." Cottrell v. Heritages Dairy Stores, Inc., 2010 WL 3908567, at *2 (D.N.J. Sept. 30, 2010) (citing Mortensen, 549 F.2d at 891). II. 6 Federal Rule of Civil Procedur A motion under Federal Rule o Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. 1 F.3 176, 183 (3d Cir. 1993). The defendant bears the burden of showing that no claim has been pres nted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a Rule 12(b) 6) motion, a district court should conduct a three-part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'take note of the elements a plaintiff must pl ad to state a claim."' Id. (quoting Ashcroft v. Iqbal, 56 U.S. 662, 675 (2009)). Second, the co must accept as true all of a plaintiffs well-pleaded factual allegations and construe the corlaint in the light most favorable to the v. UPMC Shadyside, 578 F .3d 203, 21 Fowler 11 (3d Cir. 2009); see also Connelly v. Lane Const. I Corp., 2016 WL 106159 (3d Cir. Jan. 11, 2016). However, the court may disregard any conclusory legal allegations. Fowler, 518 F.3d at 203. Finally, the court must determine whether I the "facts are sufficient to show that plaintiff has a 'plausible claim for relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more than a "mere possibility of misconduct," the complaint must be dismissed. See Gelman v. State Farm Mut. I Auto. Ins. Co., 583 F.3d 187, 190 (3d Gir. 2009) (quoting Iqbal, 556 U.S. at 679). ANALYSIS Defendants make six separate guments in their motion to dismiss. The Court will address each in turn. 4 I. . Eleventh Amendment Sovereign Immunity first argue against Defendant and clatms agatnst Defendant Janci m his official capacity are barred by Sovereign lmmuruty denved from the Eleventh Amendment pf the J.s. Constitution. This argument challenges the Court's subject matter jurisdiction, and therefoje is determined pursuant to Federal Rule of Civil Procedure 12(b)(l). Bianciak v. Allegheny Ludium Corp., 77F.3d 690, 693 n.2 (3d Cir. 1996). The Eleventh Amendment projdes, ''The Judicial power of the United States shall not be construed to extend to any suit in law r equity, commenced or prosecuted against one of the United States by citizens of another St te, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amentlment's grant of sovereign immunity applies to§ 1983 claims brought against a state. See Quel v. Jordan, 440 U.S. 332, 345 (1979). Eleventh Amendment immunity also extends to Lain actions against state agencies and departments so long as the state itself is the real party L F.2d 655, 659 (3d Cir. 1989). Similarl I, the NJCRA has also been interpreted to grant immunity interest. Fitchik v. N.J. Transit Rail Operations, 873 to "states and state officials acting in t eir official capacity." Estate ofLagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 856 (3d Cir. 2014). In determining whether sovereign immunity applies, the Court must consider: (1) the source of the funds that would pay for the judgment; (2) the status of the entity ,der state Jaw; and (3) the entity's degree of autonomy. Fitchik, 873 F.3d at 659. The Third C r t recently held that whether a defendant enjoys Eleventh Amendment sovereign immutfty is "analytically distinct" from whether a Defendant is 1an a "person" subject to suit under § 1983l •d that "Fitchik provides the proper framework for analyzing Eleventh Amendment sover ·gn immunity as it applies to county prosecutors." Lagano, 769 F.3d at 857-58 (3d Cir. 2J14). The Eleventh Amendment does not preclude suits 5 brought against State officials in their ·ndividual capacities, however, even if the challenged conduct was part of their official respo sibilities. Hafer v. Melo, 502 U.S. 21, 31 (1991). a S o t ofFunds . . . The first Fztchzk factor 1.s the s mce of the funds to pay for the Judgment. Fztchzk, 873 F.3d at 659. This is the most important of the three factors. Id. Under this factor, the Court must determine if the State will ultimately a sorb financial responsibility for a judgment in the case. I "Under New Jersey law, when county rosecutors and their subordinates perform law enforcement and prosecutorial :11nctior, 'they act as agents of the State.' As such, they are entitled to indemnity under the [New Jfrsey Tort Claims Act] for judgments arising from such conduct." Harvey v. Cty. ofHuqson, 2 15 WL 9687862, at *5 (D.N.J. Nov. 25, 2015) (citing Wright v. State, 778 A.2d 443, 461--62, 464 (N.J. 2001)). However, if the alleged misconduct . I involves fraud, actual malice, o:rwillful misconduct, the State ofNew Jersey is not required to defend and indemnify county prosecutjrs. Wright, 778 A.2d at 465; Hyatt v. Cty. ofPassaic, 340 F. App 'x 833, 83 7 (3d Cir. 2009) (no,g that the Attorney General may refuse to indemnify under N.J.S.A. § 59-lOA-2 if the act r!ulted from willful misconduct or actual malice). Here, Plaintiff alleges that dant J anci purposefully lied to Plaintiff's parole officer by stating that there was a no-contact o der in place which Plaintiff would violate upon his release. (Comp!. at "Factual Allegatiol Common to All between an Assistant Prosecutor and a 4). Although communication officer relates to law enforcement or prosecutorial function, Plaintiff's allegations involv, fraud, malice, or misconduct such that the State would not be required to defend and indemniif Defendants. Wright, 778 A.2d at 465. While the State is thus not obligated to represent and indLfy Defendants here, the State appears to have chosen to do so, such that any judgment woulj come from the State. 6 The New Jersey Supreme Co indemnify wider N.J.S.A. § 59:1 OA-1 r has held that the State's obligations to defend and "wedded together." Wright, 778 A.2d at 444--45. More speci:fically, the State must "indemni1 employees for whom a defense is provided." Id. at 444 (citing N.J .S.A. § 59: 1). Here, thr of Attorney is Defendants. 2 Defendants also represent m their bnef that "the State will ultimately have to withdraw funds from its treasury to acLwit for being both vicariously liable for their actions and ·responsible for their defense and indeilru:fication." (Defs.' Br., ECF No. 13 at 9). Based on this statement, the fact that the Office of th Attorney General is representing Defendants, and the New Jersey Supreme Court's on of the State's obligations in Wright, the State appears to have agreed to represent and indemnify Defendants, satisfying the first Fitchik factor. b. Fitchik Factor Two: sil Under Law The second Fitchik factor is thj status of the agency wider state law. The focus of the second factor is "whether state law trelts an agency as independent, or as a surrogate for the state." Fitchik, 873 F .2d at 662. Cowitt prosecutors are "appointed by the Governor with the advice and consent of [State] N.J. Const. art. VII,§ 11.1. '"The criminal business of the State' of New Jersey ts 'prosecuted by the Attorney General and the county prosecutors."' In re Camden Police Cases, 2011 WL 36f 1318, at *8 (D .N.J. Aug. 18, 2011) (citing N .J.S .A. § 2A: 158-4). "Under New Jersey law, when county prosecutors and their subordinates perform law enforcement and·prosecutorial fun tions, 'they act as agents of the state."' Hyatt v. Cty. of 2 At oral argument on August 24, 2017 Defendant's counsel represented that his office's representation of Defendants HCPO and Janci evidenced an agreement to indemnify the Defendants. The Court notes that muldple Courts in this District have found similar agreements to represent and indemnify a defendant relevant in evaluating the first factor of a Fitchik analysis. See, e.g., Harvey v. Cty. ofHJdson, 2015 WL 9687862, at *4 (D.N.J. Nov. 25, 2015); In re Camden Police Cases, 2011 WL B651318, at *5 n.5 (D.N.J. Aug. 18, 2011); Landi v. Borough ofSeaside Park, 2009.WL 60b141, at *4 (D.N.J. Mar. 9, 2009); Kandi/ v. Yurkovic, 2007 WL 4547365, at *4 (D.N.J. Dec. 18, 2007). 7 Passaic, 340 F. App'x 833, 836 (3d Ci . 2009) (citing Wright, 778 A.2d at 461). As discussed above, Plaintiff alleged misconduct with respect. to law enforcement and prosecutorial functions. Defendants HCPO and Janci are not trLted as independent entities under New Jersey law. Therefore, the Court finds that the secld Fitchik factor is satisfied. c. Fitchik Factor 1bree: Dlgree of Autonomy The Third Fitchik factor is the jgency' s degree of autonomy. County Prosecutor's offices and their employees are subject to supLsion and supersession by the Attorney General. N.J.S.A. § 52: l 7B-l 06 ("[T]he Attoml General may supersede the county prosecutor for the purpose of prosecuting all of the crijal business of the State in said county, intervene in any investigation, criminal action, or proc+ing instituted by the county prosecutor, and appear for the State in any court or tribunal for th purpose of conducting such investigations, criminal actions or proceedings as shall be nece sary for the protection of the rights and interests of the State."). Thus, the Court finds that nei er Defendant HCPO nor Defendant Janci is autonomous. d. Balancing the Factors In sum, the Court finds that all ee Fitchik factors are satisfied. Therefore, Defendant HCPO and Defendant Janci-to the ex ent that Plaintiff's claims are brought against him in his official capacity-are entitled to soverr·gn immunity, and these claims are dismissed. 3 However, as noted above, the Eleventh Amendm .nt does not preclude suits brought against State officials in their individual capacities, even if thb challenged conduct was part of their official responsibilities. Hafer, 502 U.S. at 31. bus, Plaintiff's claims against Defendant Janci in his individual capacity are not dismissed ol this basis. 3 Additionally, at oral argument on August 24, 201 7, Plaintiff's counsel represented that Plaintiff would no longer be pursuing all claims against Defendant HCPO. 8 II. Whether Defendant HCPO and Defendant Janci in His Official Ca aci under 42 U.S.C. 1983 and th NJCRA are "Persons" Defendant also argues that Plai tiff's claims must be dismissed because Defendant HCPO and Defendant Janci in his official capacity are not "persons" amenable to suit under § 1983 and the New Jersey Civil Rightl Act (''NJCRA"). Section 1983 imposes liability on "[e]very person who, under color of Jy statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citize1i of th United States or other person within the jurisdiction laws." 42 U.S.C. § 1983 (emphasis ad ed). Whereas local government bodies and their officials are "persons" under § 1983, states, state agencies, and state officials acting in their official capacities are not. Lagano, 769 F.3d at 854 (3d Cir. 2014) (citing Will v. Mich. Dep 't ofState Police, 491 U.S. 58, 71 (1989); Monen v. Dep 't ofSocial Servs., 436 U.S. 658, 690 (1978)). As the Third Circuit explained in Lagano, this inquiry cannot be collapsed into the sovereign immunity analysis. Id. at 857-58, 858 .8. Like§ 1983, the NJCM creat a cause of action against a ''person acting under color of I law." N.J. Stat. Ann.§ 10:6-2 (emphasis added). In this context, "person" likewise does not extend to the state itself or state agencifs or officials in their official capacity. Lagana, 769 F.3d · at 856 ("New Jersey district courts have interpreted the NJCRA as having incorporated the Supreme Court's decision in Will that, [or purposes of§ 1983, states and state officials acting in their official capacity are not amenabl to suit."); see also Didiano v. Balicki, 488 F. App'x 634, 637-39 (3d Cir. 2012) (interpreting th definition of"person" inN.J. Stat. Ann.§ 1:1-2). The question thus becomes wh ther Defendants HCPO and Janci were acting as arms of the state when performing the alleged ffending conduct. The Third Circuit's decision in Coleman v. Kaye, 87 F.3d 1491: (3d c· . 1996), governs this analysis. When New Jersey county 9 prosecutors "engage in classic law en:fl rcement and investigative functions, they act as officers of the state." Coleman, 87 F.3d .at 1505. When, however, prosecutors "perform administrative functions 'unrel.ated to the involled in crum.nal prosecutions,"' Lagano, 769 F.3d at 855 · · (quoting Coleman, 87 F .3d at 1505-06 , they are not acting as arms of the state but as county officials who remain subject to§ 19831 uits. The category of the actions taken, and not their alleged wrongfulness, is determinative. Whereas personnel or staffing decisions fall within the administrative ambit of a prosecutor's ffice and therefore "flow from the County," Evans v. City 1 ofNewark, 2016 WL 2742862, at *9 (D.N.J. May 10, 2016), actions taken related to enforcing the criminal law-including introducinl fabricated evidence at trial-fall within the "law enforcement and prosecutorial functio s" of the county prosecutor's office and therefore constitute conduct as an arm of the stat . Id. at * 10. Here, Defendant J anci alleged! communicated with a parole officer to discuss fabricated conditions of Plaintiff's release on bail. (Compl. at "Factual Allegations Common to All Counts" ,, 3-4.) Communication on such a sub ect between the prosecuting authority and the accused's parole officer falls within the Defendant HCPO and Defendant Janci law enforcement and prosecutorial functions of both L his official capacity, regardless of the alleged malicious or fraudulent character of th statement made. Cf. Lagano, 769 F.3d at 855-56 (describing actions taken in the .context of a personal and business relationship by an individual prosecutor and his office that ex.ceeded the "classic law enforcement and investigative functions"). Accordingly, both Defendant HCPO and Defendant Janci in his official capacity were acting as arms of the state and thtfore are not ''persons" under§ 1983 or the NJCRA, and the claims against them are dismissed on this basis. The§ 1983 and NJCRA claims against Defendant Janci in his individual capa jity, however, may proceed. 10 III. Absolute Prosecutorial Ihununi Defendants also argue that Defendant J anci is entitled to absolute prosecutorial immunity. The Third Circuit assigns the "heavy b rden" of establishing absolute immunity to the prosecutor, Light v. Haws, 472 F.3d 74 80-81 (3d Cir. 2007), beginning from a presumption that the lesser protection of qualified immunity applies. Odd v. Malone, 538 F.3d 202, 207-08 (3d . I Cir. 2008). Prosecutors enjoy absolute immunity from § 1983 claims stemming from "activities . . . intimately associated with the phase the ...." v. Pachtman, 424 U.S. 409, 430 (1976), but quahfij nnmuruty when "actmg m an mvestigative or administrative capacity ...." Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (citing Imbler, 424 U.S. at 430; Burns v. Reed 500 U.S. 478 (1991)). Courts must engage a "'functional' analysis," Giuffre v. Bissju, 31 F.3d 1241, 1251 (3d Cir. 1994), to determine whether the prosecutor ''was functioning as the state's 'advocate' while engaging in the alleged conduct that gives rise to the constitutilnal violation." Yarris v. Cty. ofDelaware, 465 F.3d 129, 136 (3d Cir. 2006). The Third Circuit rrects ''bright-line rules that would treat the timing of the prosecutor's action (e.g. pre- or postin1ictment.), or its location (i.e. in- or out-of-court), as dispositive." Odd, 538 F.3d at 210. Accepting Plaintiff's allegations as true and drawing all reasonable inferences in his favor, absolute immunity is notiapproptate at the motion to dismiss stage. Defendant Janci's alleged phone call to Plaintiffs parole officer to discuss the conditions of his release on bail was .not clear! y within the scope of Defendtt J anci' s advocative role. While Plaintiff was already indicted, the timing of the conduct is not dispositive, and based on the allegations in the Complaint it seems Defendant Janci's 11eged call was on a matter collateral to his preparation for judicial proceedings or prosecution the pending domestic violence charges. See Buckley v. Fitzimmons, 509 U.S. 259, 273 (1993) "A prosecutor's administrative duties and those 11 investigatory functions that do not rela to an advocate' s preparation for the initiation of a prosecution or for judicial proceedings e not entitled to absolute immunity."); see also Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 198 ) (finding pleadings did not enable the Court to determine what role defendant-prosecutors were cting in when they relayed confidential grand jury information to individuals outside of their office). Defendants cite a litany of cas, granting absolute immunity to prosecutors for clear advocative acts-e.g. statements and conduct at trial-and investigative acts closely related to judicial proceedings. See, e.g., KulwicJ, 969 F.2d at 1463--65 (noting that malicious prosecution, soliciting false witness testimony, false testimony in connectiori with a prosecution, and conducting interviews for grand jury etdence are protected by absolute immunity). However, because Defendant Janci' s call allegedlr led to Plaintiff's subsequent re-arrest for violating his 2001 CSL, the conduct more closely mirrors cases in which prosecutors acted in a purely investigative role in deciding ''whether la suspect may be arrested," Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), or provided leJ advice to police officers beyond their role as the state's I, advocate in an existing prosecution, se e.g., Burns v. Reed, 500 U.S. 478, 496 (1991); Giuffre, 31 F .3d at 1253-54 (extending the reas ning of Buckley and Bums to a situation in which a 1 defendant was already ''under arrest by the Prosecutor's Office"). Defendant J anci' s alleged conduct is also similar to acting in an atlm.inistrative role by leaving a witness in custody, see, e.g., Odd, 538 F.3d at 212-16 (charactrzing as "administrative" a prosecutor's failure to alert a judge to release a third-party witness from custody after the proceeding in which he was set to testify had ended). Accordingly, the cdurt does not determine at this time that Defendant Janci is I . entitled to absolute immunity for the alleged conduct. 12 N. Immunity Next, Defendants argue that Defendant Janci is entitled to qualified immunity. When engaged in discretionary functiqns, "q1ified immunity shields government officials from civil liability as long 'as their conduct does tot violate clearly established statutory or constitutional rights of which a reasonable person would have known."' McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (quoting Harlow v. 457 U.S. 800, 818 (1982)). First, a court must determine what right was violated, andl second, whether the right specifically defined was clearly established such that "every reasonable official would have understood that what he [was] doing violates that right." Mulle lix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation omitted). Plaintiff has pied violations of 's right not to be deprived of liberty without Due Process of law under the Fifth and Fourteenth endments as well as ''the full complement of civil rights as protected by the provisions of the U.S. Constitution." (Compl. at "First CountViolation of 42 U.S.C. § 1983", 2). e alleged conduct-that Defendant Janci fabricated grounds for Plaintiff's re-arrest, thereb subjecting Plaintiff to unlawful detention-.suggests a violation of Plaintiff's Fourth AmenJent right not to be unreasonably seized, satisfying the first step. See Groman v. Twp. ofManalapaf, 47 F.3d 628, 636 (3d Cir. 1995) ("A false imprisonment claim under § 1983 whidh is based on an arrest made without probable cause is grounded in the Fourth Amendment's larantee against unreasonable seizures."); see also Schneyder v. Smith, 653 F.3d 313, 32lt22 (3d Cir. 2011). It is beyond dispute that arresting an individual without probable cause violates a clearly established right. See, e.g., Orsatti v. lJersey State Police, 71F.3d480, 483 (3d Cir. 1995). Plaintiff's complaint alleges the relatJscenario of a prosecutor orchestrating a post-release arrest and subsequent incarceration by lurposefully lying about the existence of a no-contact 13 order, where the arrest otherwise lacked probable clause. A prosecutor "engineer[ing] a false arrest" constitutes a ''violation of clearll established law would been apparent to a reasonable officer." Evans, 2016 WL 2'42862, at *13 (citing Orsattz, 71 F.3d at 483); see also Schneyder, 653 F .3d at 330--31 (colleclg cases and holding that a prosecutor's failure to ensure the release of a person no longer laJly detained violated clearly established law). Accepting as true the allegations in Plaintiff's co,plaint, Plaintiff sufficiently alleges conduct that violated a clearly established right: that Defendant J anci "knowingly violate[d] the law," Ashcroft v. a/- Kidd, 563 U.S. 731, 743 (2011) (quoti,gMalleyv. Briggs, 475 U.S. 335, 341 (1986)), by lying to Plaintiff's parole officer in order to effect a baseless arrest. 4 Accordingly, the Court cannot find at this time that Defendant Janci is entitled to qualified immunity. However, the Court directs the Defendant to file an additio al motion based on the theory of qualified immunity with fully briefed facts and law. V. Whether Intentional Tort Claim a ainst Defendant HCPO are Barred b the New Jerse Tort Claims Act Defendants also argue that Plai tiff's claims for intentional torts are barred by the New Jersey Tort Claims Act ("NJTCA"). Gi1Ven the Court's previous finding, supra Section I, on Defendant HCPO's enjoyment ofsov eign immunity, the Court need not decide whether Plaintiff's claims are barred by the NJ 4 Defendants also argue that Defendant J anci is entitled to qualified immunity because Plaintiff fails to "proffer facts ... to show that [ 's] allegations are plausible." (ECF No. 13-1 at 21-22.) The Third Circuit has found that ar ent "legally unsound'' because it is not a plaintiffs burden to bear for a qualified immunity defense. Thomas v. Independence Twp., 463 F.3d 285, 291-94 (3d Cir. 2006). 14 VI. Whether Plaintiff has Pied a M licious Prosecution Claim Count III Lastly, Defendants argue that P aintiff has not adequately pied a claim for Malicious Prosecution and therefore Count III mu t be dismissed. The parties apparently treat Plaintiffs Malicious Prosecution claim as a co on law claim brought pursuant to New Jersey law. The Complaint does not indicate otherwise, and as a result, the Court assumes that this claim is brought pursuant to New Jersey comm n law. To establish a New Jersey common law malicious prosecution claim, a Plaintiff must shot: ( 1) a criminal action was instituted by the defendant against the plaintiffs, (2) it was actuatei. by malice, (3) there was an absence of probable cause for the proceedings, and (4) the criminr proceeding was terminated favorably to the plaintiff. Lind v. Schmid, 337 A.2d 365, 368 (Nt 1975). Here, Plaintiff fails to plead thal the criminal proceeding allegedly caused by Defendant Janci's misconduct was terminated fav0rably to Plaintiff. In his opposition brief, Plaintiff introduces new facts in an effort to satilfy this factor. It is axiomatic that a party may not amend his Complaint in an opposition brief. Sr· 2009 WL 792489, at *13 (D.N.J. Mar. e.g., Cincerella v. Egg Harbor Twp. Police Dep 't, f3' 2009) (citing Anderson v. DSM N. V., 589 F. Supp. 2d 528, 534 n.5 (D.N.J. 2008)). However, ie Third Circuit has instructed that where a complaint is vulnerable to Rule 12(b)(6) dismissal, t District Court must permit a curative amendment, unless an amendment would bejnequiible or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). The Court does not find tha1 it would be inequitable or futile to grant Plaintiff leave to amend his Complaint, and as a resul will do so. The Court will dismiss Count III of the Complaint without prejudice and grant Plaintiff leave to amend. 15 CONCLUSION For the reasons stated. herein, D fondants' motion is granted in part. An appropriate order will fol_low. 16

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