ROBERT EGAN v. KIMBERLY HOLMES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3714-05T13714-05T1

ROBERT EGAN,

Plaintiff-Appellant/

Cross-Respondent,

v.

KIMBERLY HOLMES, individually

and in her official capacity as

an Assistant Prosecutor with the

Bergen County Prosecutor's Office,

Defendant-Respondent/

Cross-Appellant,

and

CITY OF HACKENSACK; ROBERT

ADAMSKI, individually and in his

official capacity as a law

enforcement officer with the

Hackensack Police Department,

DETECTIVE SYLVIA PRESTO,

individually and in her official

capacity as a detective with the

Bergen County Prosecutor's Office,

Defendants-Respondents,

and

CAPTAIN JAMES SMITH,

Defendant,

and

KIMBERLY HOLMES,

Third-Party Plaintiff,

v.

CUBBY'S INC.,

Third-Party Defendant.

________________________________________

 

Argued November 27, 2007 - Decided

Before Judges Coburn, Fuentes and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4117-02.

Kathryn J. Kingree argued the cause for appellant (Algeier Woodruff, P.C., attorneys; Robert B. Woodruff, of counsel; Ms. Kingree, on the brief).

John A. Stone argued the cause for respondent/cross-appellant Kimberly Holmes and respondent Sylvia Presto (Edwards & Caldwell, L.L.C., attorneys; Mr. Stone, of counsel and on the brief).

Joseph P. Kreoll argued the cause for respondent Robert Adamski (The Law Offices of Richard Malagiere, attorneys; Richard Malagiere, of counsel and on the brief; Mr. Kreoll, on the brief).

Paul B. Brickfield argued the cause for respondent City of Hackensack (Brickfield & Donahue, attorneys; Mr. Brickfield, on the brief).

PER CURIAM

Plaintiff, Robert Egan, appeals from the orders of February 16, 2006, granting the summary judgment motions of defendants Kimberly Holmes, Sylvia Presto, the City of Hackensack, and Robert Adamski, and dismissing the complaint. In her cross- appeal, defendant Kimberly Holmes appeals from the order of February 16, 2006, denying her motion for partial summary judgment and dismissing her counterclaim and third-party complaint.

This litigation arose out of criminal charges brought against plaintiff due to events that took place at his restaurant, Cubby's Restaurant, in the City of Hackensack on May 10, 2000. On that day, three men, who were Africans, entered plaintiff's restaurant and became difficult, refusing to order. According to plaintiff, when defendant asked them to leave, one of the men became verbally abusive, shouting racial epithets at plaintiff and threatening to get a gun. Plaintiff called the police, and then followed the men into the parking lot to obtain the license plate number of their vehicle. Four witnesses, consisting of two customers, one employee, and one restaurant supplier, confirmed this version of events.

According to plaintiff, the men assaulted him in the parking lot. Two of the witnesses confirmed plaintiff's account of the assault. The police arrested the three men, and later that day, plaintiff signed complaints against them for aggravated assault, terroristic threats and defiant trespass. The police report prepared on the day of the incident stated that plaintiff was the victim of the assault.

Several days later, the three men signed complaints against plaintiff for an alleged bias incident. The matter was turned over to Assistant Prosecutor, defendant Holmes, who handled bias crimes. She requested a report from defendant Adamski, the first Hackensack Police officer to arrive at the scene on May 10, 2000. In his police report prepared on May 17, 2000, Adamski stated that when he arrived at the scene, he saw plaintiff run up to the vehicle and repeatedly slam the door on one of the three men.

Holmes then presented the case to the grand jury, including the testimony of defendant Adamski, a statement from plaintiff (who declined to appear upon advice of counsel), a security video showing the inside of the restaurant during the incident, and the testimony of the three complainants, the four witnesses confirming plaintiff's version of events, Officer Smith, and another officer who initially spoke to the complainants at the police station. On August 9, 2001, plaintiff was indicted on one count of aggravated assault, three counts of bias assault, and three counts of bias harassment. Plaintiff was never arrested or placed in custody for the charges.

While the indictment was pending, plaintiff undertook what he describes as a public campaign to clear his name, including hiring an airplane to fly over the state house in Trenton with a sign that read "Prosecutor Kimberly Holmes Lies, Lies, Lies." He also posted on the marquee to his restaurant the words "Kim Holmes is the Winner of the First Annual Pork Butt of the Year Award."

An enhanced copy of the security tape did not confirm the allegations of the three men. Accordingly, on August 27, 2002, the prosecutor administratively dismissed the indictment against plaintiff.

Plaintiff filed this lawsuit, contending that defendants violated his federal constitutional rights under the First, Fourth and Fourteenth Amendments to the United States Constitution and seeking remedies under 42 U.S.C.A. 1983 and 1988. He also contended in his complaint that defendants conspired to retaliate against him by presenting false testimony and bringing unlawful charges without probable cause, in violation of 42 U.S.C.A. 1985(2) and 1986. In addition to these federal claims, plaintiff asserted State constitutional law claims and the common law tort claims of abuse of process and intentional misrepresentation. Holmes filed a counterclaim against plaintiff and a third-party complaint against Cubby's Restaurant alleging defamation.

By consent orders dated April 17, 2003, plaintiff voluntarily dismissed with prejudice the following claims against defendants Holmes and Presto: the 42 U.S.C.A. 1983 claims stemming from the grand jury proceedings; the claims under 42 U.S.C.A. 1985(2) and 1986; the State constitutional law claim under N.J. Const. art. I, 7; and all of the common law tort claims. By consent order dated October 2, 2003, plaintiff voluntarily dismissed with prejudice the following claims against the defendant City of Hackensack: the 42 U.S.C.A. 1983 claims arising from the testimony of the Hackensack police officers before the grand jury; the claims under 42 U.S.C.A. 1985(2) and 1986; the claims under N.J. Const. art. I, 7; and all of the common law tort claims.

On motions for summary judgment, the trial judge dismissed both plaintiff's complaint and defendant Holmes' counterclaim and third-party complaint. In his eighteen-page written opinion, the trial judge found that plaintiff failed to state a claim. Further, even if plaintiff's claims were validly asserted, the trial judge found that defendants were protected by various immunities, holding that Holmes was serving in an advocacy role and was entitled to the absolute immunity accorded prosecutors; that Presto, a detective with the prosecutor's office, was also entitled to the absolute immunity accorded prosecutors and that even if only qualified immunity applied, she would still be immune; and that defendant Adamski was entitled to absolute testimonial immunity for his testimony before the grand jury and absolute immunity for the contents of the police report he prepared at Holmes' request. In addition, the trial court found that plaintiff failed to make out a claim under 42 U.S.C.A. 1985(2) and 1986 because he had not alleged that he was a victim of class-based animus. The 42 U.S.C.A. 1983 claim against the City of Hackensack was dismissed on the basis that the facts as alleged by plaintiff did not support such a claim.

The trial judge also dismissed the defamation claims asserted by defendant Holmes on the basis that as an assistant prosecutor, she is a public figure and hence must prove malice to support her claim. The court further held that since the statements made by plaintiff expressed his opinion, they were not actionable.

Plaintiff raises the following issues on appeal:

POINT ONE

THIS COURT IS NOT REQUIRED TO DEFER TO THE DECISIONS OF THE TRIAL COURTS IN REVIEWING SUMMARY JUDGMENT ORDERS

POINT TWO

THE COURT BELOW ERRED IN FINDING OFFICER ADAMSKI ABSOLUTELY IMMUNE FROM LIABILITY AND DISREGARDED ESTABLISHED CASE LAW IN DOING SO

POINT THREE

THE DEFENDANTS DO NOT HAVE QUALIFIED IMMUNITY FROM LIABILITY

POINT FOUR

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ADAMSKI DISMISSING PLAINTIFF'S CLAIMS PURSUANT TO 42 U.S.C. SECTION 1985(2) AND SECTION 1986

POINT FIVE

THE COURT BELOW ERRED IN FINDING DEFENDANT ADAMSKI ABSOLUTELY IMMUNE FROM LIABILITY FOR PLAINTIFF'S STATE CONSTITUTIONAL AND COMMON LAW CLAIMS

POINT SIX

PLAINTIFF HAS ALLEGED A CAUSE OF ACTION AGAINST DEFENDANTS UNDER THE NEW JERSEY CONSTITUTION AND THE COURT BELOW ERRED IN DISMISSING THESE CLAIMS

POINT SEVEN

PLAINTIFF HAS ALLEGED A CAUSE OF ACTION AGAINST DEFENDANTS FOR LIABILITY PURSUANT TO THE COMMON LAW CAUSES OF ACTION OF MISUSE OF PROCESS AND INTENTIONAL MISREPRESENTATION

POINT EIGHT

PLAINTIFF HAS ESTABLISHED PRIMA FACIE CLAIMS AGAINST DEFENDANTS HOLMES AND PRESTO FOR VIOLATION OF HIS CONSITITUTIONAL RIGHTS PURSUANT TO 42 U.S.C. SECTION 1983

POINT NINE

PROSECUTOR HOLMES DOES NOT HAVE ABSOLUTE IMMUNITY FROM PLAINTIFF'S CLAIMS

POINT TEN

DETECTIVE PRESTO IS NOT ABSOLUTELY IMMUNE FROM LIABILITY FOR PLAINTIFF'S CLAIMS

POINT ELEVEN

GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER PLAINTIFF WAS DEPRIVED OF HIS RIGHTS BY THE CONDUCT OF THE CITY OF HACKENSACK.

POINT TWELVE

THE GRATUITOUS REMARKS MADE BY THE COURT QUESTIONING MR. EGAN'S CHARACTER SHOW A BIAS AGAINST PLAINTIFF AND IN FAVOR OF THE DEFENDANTS

Defendant Holmes raises the following issues in her cross- appeal:

POINT FOURTEEN

PROSECUTOR HOLMES IS ENTITLED TO PARTIAL SUMMARY JUDGMENT ON HER COUNTERCLAIMS AND THIRD-PARTY COMPLAINT

A. There are no genuine issues of fact precluding prosecutor Holmes from obtaining partial summary judgment

regarding Egan's liability on her

counterclaim and third-party complaint

B. There are no genuine issues of law

precluding prosecutor Holmes from

obtaining partial summary judgment

on her counterclaim and third-party

complaint

After a careful review of the record, we affirm substantially for the reasons set forth by Judge Donohue in his comprehensive written opinion of February 16, 2006. We add only the following comments.

When reviewing a decision on a motion for summary judgment, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In order for a motion for summary judgment to be granted, the movant must show "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When considering the motion, the court must give the opponent to the motion all of the favorable inferences that may be drawn from the evidence and determine whether, under those circumstances, a rational factfinder could hold for the non-movant. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995). If so, the motions must be denied. Ibid.

The trial court found that defendant Adamski was entitled to absolute immunity from claims against him made under 42 U.S.C.A. 1983 and the New Jersey State Constitution arising from his testimony to the grand jury. In doing so, the judge relied on Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983), and Durand Equip. Co. v. Superior Carbon Prods., Inc., 248 N.J. Super. 581 (App. Div. 1991). These cases recognize the absolute immunity from civil liability that witnesses in judicial or quasi-judicial proceedings enjoy under the common law in order to allow witnesses to testify fully and openly. Briscoe v. LaHue, supra, 460 U.S. at 330-34, 103 S. Ct. at 1114-15, 75 L. Ed. 2d at 105-07; Durand Equip. Co. v. Superior Carbon Prods., Inc., supra, 248 N.J. Super. at 583-87. A police officer testifying as a witness is entitled to immunity not because he is a police officer but because he is a witness, and when acting in that capacity, he enjoys the immunity accorded witnesses. Briscoe v. LaHue, supra, 460 U.S. at 342, 103 S. Ct. at 1119, 75 L. Ed. 2d at 112. Punishment of witnesses who intentionally lie or misbehave is left to public officials through contempt procedures or perjury charges, not to private individuals through civil lawsuits. See Durand Equip. Co. v. Superior Carbon Prods., Inc., supra, 248 N.J. Super. at 585-87. In the Third Circuit, this absolute immunity has been extended to the testimony of witnesses in the pretrial proceedings, such as preliminary and suppression hearings. Williams v. Hepting, 844 F.2d 138, 142-43 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 135, 102 L. Ed. 2d 107 (1988).

Plaintiff contends that this rule does not apply to the testimony of a police officer before a grand jury. However, in making this argument, plaintiff fails to recognize the distinction made in the case law between circumstances where a police officer is testifying as the complaining witness and those instances where the police officer is testifying merely as a witness. In Malley v. Briggs, 475 U.S. 335, 340-41, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986), relied on by plaintiff, the United States Supreme Court held that a police officer who testifies as a complaining witness is accorded only qualified, not absolute, immunity. This holding is consistent with the common law, which recognizes the tort of malicious abuse of process, so that one who procures an arrest warrant maliciously and without probable cause may be held civilly liable. Ibid.

In arguing that absolute immunity does not extend to police officers who testify in grand jury proceedings, plaintiff also relies on Palma v. Atlantic County, 53 F. Supp. 2d 743 (D.N.J. 1999). However, the holding in Palma expressly applies to situations where the police officer is testifying as a complaining witness. Id. at 766. The Palma court summarized its holding on this point as follows: "[w]here, however, the police officer is acting as a complaining witness before the grand jury, he or she is only entitled to qualified immunity from civil liability on a claim for malicious prosecution arising out of any alleged perjured testimony." Ibid.

Since Adamski did not file the complaints that initiated the charges against plaintiff, he was not the complainant, and falls outside the scope of the case law relied on by plaintiff. Adamski appeared before the grand jury in his capacity as a witness, and the trial judge correctly found that Adamski was entitled to the absolute immunity accorded to such witnesses.

We also note that plaintiff's claim that defendants Holmes and Presto are liable under 42 U.S.C.A. 1983 due to their violation of his Fourth Amendment federal constitutional rights was properly dismissed because plaintiff was never arrested, incarcerated, detained, or otherwise deprived of his liberty, a necessary component of such a claim. DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).

 
The dismissals of plaintiff's complaint and the counterclaim and third-party complaint of defendant Holmes are affirmed.

As a backdrop to the events in this case, plaintiff notes that he and his family had previously received a settlement of $300,000 in a civil rights case he had brought against several members of the Hackensack Police Department. In addition, on another occasion, Officer Adamski had filed charges against Egan that would have jeopardized his alcoholic beverage license, but those charges were dismissed.

Holmes and defendant Sylvia Presto, a detective working under Holmes, had previously viewed this videotape at plaintiff's restaurant. However, the parties dispute whether the tape was audible at this time and whether the sound was turned on during the grand jury proceedings.

(continued)

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A-3714-05T1

January 30, 2008