Leone v. Township of Deptford

616 F.Supp.2d 527

John LEONE, John Gillespie, Timothy Parks and Brian Green, Plaintiffs, v. TOWNSHIP OF DEPTFORD, John Marolt, Daniel Murphy, and John Weatherby, Defendants.

Civ. A. No. 08-1043 (NLH)(JS).

United States District Court, D. New Jersey.

April 29, 2009.

William H. Buckman, Esquire, Moorestown, NJ, for plaintiffs.

A. Michael Barker, Esquire, Barker, Scott & Gelfand, PC, Linwood Greene, Linwood, NJ, for defendant Township of Deptford.

Michael Paul Madden, Esquire, Timothy R. Bieg, Esquire, Madden & Madden, PA, Haddonfield, NJ, for defendant John Marolt.

Colleen M. Ready, Esquire, Margolis Edelstein, Westmont, NJ, for defendant Daniel Murphy.

Michael E. Heston, Esquire, Capehart & Scatchard, Mount Laurel, NJ, for defendant John Weatherby.

OPINION

HILLMAN, District Judge.

This matter has come before the Court on defendant Township of Deptford's and defendant John Weatherby's motions for judgment on the pleadings concerning plaintiffs' allegations of state and federal constitutional violations for incidents surrounding the indictment and prosecution of plaintiffs Gillespie, Parks and Green for an excessive force allegation.¹ Defendant John Marolt has joined in Township of Deptford's motion. Plaintiffs have opposed defendants' motions. For the reasons expressed below, defendants' motions will be granted in part and denied in part.

BACKGROUND

Plaintiffs John Gillespie and Timothy Parks are Deptford Township police officers who were indicted for allegations of excessive force. Brian Green, also a Deptford Township police officer, was indicted for failing to report or properly supervise the incident. The alleged incident occurred in February 2006, and these three plaintiffs were suspended without pay in March 2006. A trial was held with regard to the charges against Gillespie. Plaintiff John Leone, a Deptford Police Sergeant, testified at Gillespie's trial as an expert witness on the use of force. Gillespie was acquitted on July 13, 2007, and the charges against Parks and Green were subsequently dismissed.

Plaintiffs claim that the criminal charges against them were "bogus" and lacking in probable cause. They further claim that when Leone informed the police department that he was going to testify at Gillespie's trial as an expert on the use of force, defendants Marolt, Murphy and Weatherby threatened Leone's career. Plaintiffs claim that the harassment of Leone became so severe that following an incident between Leone and Murphy on June 6, 2007, Leone provided a statement to Gillespie's attorney, who in turn reported the conduct to the court hearing the charges against Gillespie. On June 11, 2007, based on Leone's statement, Gillespie signed criminal complaints against Murphy for official misconduct and witness tampering, and against Weatherby for official misconduct. According to plaintiffs' complaint, on June 13, 2007 the state trial judge admonished defendants and ordered them to cease tampering with witnesses.

Plaintiffs claim that they were treated differently from Weatherby and Murphy because they were not put on leave without pay when criminal complaints were filed against them. They also claim that their ability to assert a defense was hindered due to defendants' conduct. Plaintiffs further contend that even after Gillespie was acquitted and the charges against Parks and Green were dismissed, there was an impermissible delay in restating them to the force. This demonstrates, plaintiffs claim, that the Deptford Township police department fostered an environment of a favored "A team" and disfavored "B team."

Based on these allegations, plaintiffs Gillespie, Parks and Green claim that their constitutional rights were violated. Specifically, plaintiffs² allege that they-were maliciously prosecuted in violation of their First and Fourth Amendment rights, denied due process in violation of their Fourteenth Amendment rights, denied access to a fair trial, the courts and counsel in violation of their Sixth Amendment rights, and their equal protection rights were violated.³ Gillespie also contends that he was retaliated against in violation of his rights as a "whistle blower" under the Contentious Employee Protection Act (CEPA). Defendants have moved for judgment in their favor on these claims.

DISCUSSION

A. Jurisdiction

Plaintiffs have brought their claims pursuant to 42 U.S.C. § 1983, as well as pursuant to the New Jersey constitution and New Jersey state law. This Court has jurisdiction over plaintiffs' federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367.

B. Standard for Judgment on the Pleadings

A Rule 12(c) motion for judgment on the pleadings may be filed after the pleadings are closed. Fed.R.Civ.P. 12(c); Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir.1991). In analyzing a Rule 12(c) motion, a court applies the same legal standards as applicable to a motion filed pursuant to Rule 12(b)(6). Turbe, 938 F.2d at 428. Thus, a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.2005).

A district court, in weighing a motion to dismiss, asks "`not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969 n. 8, 167 L.Ed.2d 929 (2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: `stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This `does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir.1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir.2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991)).

C. Analysis

1. Plaintiffs' constitutional violation claims

Plaintiffs have asserted numerous claims, pursuant to 42 U.S.C. § 1983, for violations of their federal constitutional rights.⁴ Each will be addressed in turn.⁵

a. Malicious prosecution

Even though it is not expressly pleaded in their complaint, plaintiffs appear to claim that they faced malicious prosecution in violation of both their First and Fourth Amendment rights. With regard to their First Amendment claim, plaintiffs allege that they were "denied their right of association and expression," (Compl. ¶ 71) and that they were retaliated against "by virtue of the fact that it was perceived that they were not supporters of a particular administration of the PD," and that they were "slated for harassment or termination by any means possible including the use of bogus criminal charges and administrative charges to effect their termination" (Compl. ¶ 68). Based on these allegations, plaintiffs' opposition brief maintains that they may assert a "cause of action where an officer attempts to punish an individual for the exercise of First Amendment rights by filing a criminal charge against him." (Pl. Opp. Br. at 6.)

To support this proposition, plaintiffs cite to Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.1992). That case does essentially support plaintiffs' contention, but it is inapplicable here. The Mozzochi case concerned whether a criminal prosecution based on an exercise of free speech (i.e., being charged with making a threatening communication by mailing a disturbing newspaper article) was an attempt to deter or silence the exercise by the criminal defendant of his right to free speech.⁶ Here, plaintiffs were charged criminally for allegations of excessive force based on an alleged victim's claims—they were not charged with crimes relating to their expression of dissatisfaction of the police department administration. Thus, defendants are entitled to judgment on this claim.⁷

Plaintiffs' malicious prosecution claims are more-appropriately advanced pursuant to the Fourth Amendment. To prove malicious prosecution under § 1983 when the claim is under the Fourth Amendment, a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir.2007) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.2003)). Defendants argue that they are entitled to judgment in their favor because plaintiffs cannot prove several elements of a malicious prosecution claim. Plaintiffs counter that they have pleaded sufficient facts of every element to withstand defendants' motions.

The Court finds that with regard to the third element—whether the defendant initiated the proceeding without probable cause—plaintiffs have failed to assert the required allegations. In § 1983 actions, "a grand jury indictment or presentment constitutes prima facie evidence of probable cause to prosecute." Palma v. Atlantic County, 53 F.Supp.2d 743, 756 (D.N.J.1999) (citing Rose v. Bartle, 871 F.2d 331, 353 (3d Cir.1989)). Only a showing that the "presentment was procured by fraud, perjury or other corrupt means" can...