KOWLESAR v. CITY OF NEWARK et al, No. 2:2022cv00829 - Document 46 (D.N.J. 2022)

Court Description: OPINION. Signed by Judge Evelyn Padin on 12/19/2022. (wh)

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KOWLESAR v. CITY OF NEWARK et al Doc. 46 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 1 of 16 PageID: 412 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ERIC KOWLESAR, Civil Action No. 22cv829 (EP) (JRA) Plaintiff, v. OPINION CITY OF NEWARK, et al., Defendants. PADIN, District Judge. This matter is before the Court on motions to dismiss filed by Defendants Miguel Arroyo, City Of Newark, Heriberto Figueroa, Darnell Henry, Prince Obeng-Fosu, Daniel Oliveira, Luis Osorio, and Debbie Teixeira City of Newark ), D.E. 2; and Defendants Essex County Prosecutor D.E. 29.1 Plaintiff Eric Kowlesar opposes the City of Newark Defendants motion. D.E. 10. As set forth below, the Court will grant the City of Newark Defendants motion in part and will grant the State Defendants motion in full. I. BACKGROUND Plaintiff filed a complaint under 42 U.S.C. § 1983 on February 16, 2021. D.E. 1. According to the complaint, Newark police banged on Plaintiff s front door on October 9, 2018 at 1 Defendant Essex County also filed motions to dismiss, D.E.s 9 & 34, but settled with Plaintiff on December 1, 2022. D.E. 43. The Court administratively terminated Essex County s motions subject to reopening if a formal notice of settlement is not filed within 60 days. D.E. 44. Dockets.Justia.com Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 2 of 16 PageID: 413 approximately 6:00 A.M. Id. ¶ 14. At the time, Plaintiff was in the bathroom experiencing the aftereffects Id. Plaintiff s fiancée answered the door and explained - Id. [Plaintiff] finished using the bathroom, he immediately opened the bathroom door where he was confronted by at least four (4) police officers and guns pointed at his face. Id. immediately roughly apprehended and both of his arms were forced behind his back then forced upwards in an unnecessary, forceful, and painful position despite the numerous begs to use caution Id. He was arrested and taken to the police stat man had been assaulted and robbed while hon [sic] September 20, 2018 and wrongly accused Id. Plaintiff was acquitted on February 21, 2020 and released from incarceration on February 24, 2020. Id. ¶ 15. ignored and worsened while incarcerated. . . . His cries for treatment were almost always ignored until he was in grave and dire condition Id. and six blood transfusions Id. Plaintiff asserts he Id. ¶ 17. II. STANDARD OF REVIEW When considering a motion to dismiss a complaint for failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rul 2 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 3 of 16 PageID: 414 than an unadorned, the-defendant-unlawfully-harmed- Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In reviewing the sufficiency of a com [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks s allegations of historical fact continue to enjoy a highly favorable standard of review at the motion-toIII. Id. at 790. ANALYSIS The Court will consider the City of Newark Defendants challenges to the complaint before proceeding to discuss the State Defendants motion. A. Count One Excessive Force Count One of the complaint alleges that Defendants used excessive force against Plaintiff during his arrest on October 9, 2018. D.E. 1 ¶¶ 13-20. The City of Newark Defendants argue this claim is barred by the statute of limitations. D.E. 2 at 13. of Civil Procedure require a defendant to plead an affirmative defense, like a statute of limitations defense, Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). s appropriate based on the statute of limitations when the statute of limitations defense is apparent on the face of the complaint. Demby v. City of Camden, No. 20-13893, 2022 WL 4377197, at *3 (D.N.J. Sept. 22, 2022) (quoting Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017)). 3 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 4 of 16 PageID: 415 Plaintiff concedes his excessive force claim is barred by the statute of limitations, D.E. 10 at 7, and the Court agrees. New Jersey s two-year limitations period for personal injury governs the federal claims in Plaintiff s complaint. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010); N.J.S.A. § 2A:14-2. Gofan Junior v. Elmer, No. 16-8559, 2022 WL 17082497, at *4 (D.N.J. Nov. 18, 2022) (citing Graham v. Connor, 490 U.S. 386 (1989); Brown v. Buck, 614 F. App x 590, 592 (3d Cir. 2015)). Plaintiff s injury was immediately ascertainable at the moment of his arrest, so the time to file an excessive force claim expired on October 9, 2020. The Court will dismiss this claim with prejudice. B. Count Two False Arrest and False Imprisonment Count Two alleges the City of Newark Defendants falsely arrested and imprisoned Plaintiff. D.E. 1 ¶¶ 21-26. Generally, a claim for false arrest accrues on the date of arrest. Singleton v. DA Philadelphia, 411 F. App x 470, 472 (3d Cir. 2011). However in certain until the conviction or sentence has been Heck v. Humphrey, 512 U.S. 477, 489 90 (1994). See also Garrett v. Murphy, 17 Heck, the Supreme Court held that a prisoner lacks a cause of action under § 1983 if the prisoner is challenging an allegedly unconstitutional conviction or imprisonment exception and argues that these claims did not accrue until his February 21, 2020 acquittal. D.E. 10 at 8-9. The delayed accrual rule in Heck which there was no outstanding conviction at the time of the accrual, i.e. Dique v. New Jersey State Police, 603 F.3d 181, 187 (3d Cir. 2010) (citing Wallace v. Kato, 549 U.S. 384, 4 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 5 of 16 PageID: 416 Heck rule for deferred accrual is called into play only when there exists a conviction or sentence that has not been . . . invalidated, that is to say, an outstanding criminal judgment. Wallace, 549 U.S. at 393 (omission in original). Plaintiff was arrested on October 9, 2018, and there was no existing criminal conviction on that date such that Heck would have delayed the accrual of Plaintiff s false arrest claim. Accordingly, the false arrest claim is barred by the statute of limitations.2 However, it is not clear from the face of the complaint that Plaintiff s false imprisonment claims are too late. When a judicial officer s decision to hold a defendant over for trial is based Manuel v. City of Joliet, Illinois Manuel I Manuel v. City of Joliet, Illinois, 903 F.3d 667, 66 Manuel I] shows that the Manuel II up their unlawful actions. Defendant Police Officers knew that the allegations in the criminal complain D.E. 1 ¶¶ 68-69. If this allegation is true, Plaintif 2 inconsistent with federal law, also governs the concomitant issue of whether a Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). to support equitable tolling and a district court may dismiss an untimely cause of action if it is plain on the face of the complaint that the limitations period cannot be tolled. Margolis v. Warner Chilcott (US) LLC, No. 17-4550, 2018 WL 2455925, at *6 (D.N.J. May 31, 2018) (quoting Menichino v. Citibank, N.A., No. 12 0058, 2013 WL 3802451, at *6 (W.D. Pa. July 19, 2013)). intiff may not amend the pleadings through arguments found in his or her Opposition Brief Demby v. City of Camden, No. 20-13893, 2022 WL 4377197, at *4 (D.N.J. Sept. 22, 2022) (citing Margolis, 2018 WL 2455925, at *7). There are no facts in the complaint from which the Court could reasonably conclude that equitable tolling would be appropriate in this matter. 5 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 6 of 16 PageID: 417 Manuel I, 137 S. Ct. at 918. His claim would not have accrued until he was released from custody on February 24, 2020. See Manuel II, 903 F.3d at 669 not dismiss the false imprisonment claims based on the statute of limitations. C. Count Three Conspiracy to Violate Civil Rights Plaintiff alleges in Count Three that the City of Newark Defendants conspired to deprive him of his federal civil rights.3 The City of Newark Defendants assert this claim is also timebarred. D.E. 2-1 at 13-14. There are three elements to a § 1983 conspiracy claim: (1) two or more persons conspire to deprive any person of [constitutional rights]; (2) one or more of the conspirators performs . . . any overt act in furtherance of the conspiracy; and (3) that overt act injures the plaintiff in his person or property or deprives the plaintiff of any right or privilege of a citizen of the United States, with the added gloss under § 1983 that the conspirators act under the color of state law. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 n.15 (3d Cir. 2018) (quoting Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001) (alteration and omission in original)). Graff v. Kohlman, 28 F. App x 151, 154 (3d Cir. 2002). Plaintiff alleges the City of Newark Defendants acts, including, without limitation, aggressively arresting Eric Kowlesar after being warned that he just underwent a serious life threatening surgery and incarcerating him based on the information 3 are mentioned in the factual allegations. D.E. 1 ¶¶ 27-33. 6 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 7 of 16 PageID: 418 D.E. 1 ¶ 30. The act of arresting Plaintiff occurred on October 9, 2018, so any conspiracy based on false arrest is timebarred. However, the Court will not dismiss the conspiracy claim based on false imprisonment as that claim arguably did not accrue until Plaintiff s release.4 D. Count Four Deprivation of Federally Protected Rights To the extent Count Four, , includes Plaintiff s excessive force and false arrest claims, it is barred by the statute of limitations for the reasons discussed above. D.E. 1 ¶ 34. In addition to those claims, Count Four makes municipal and supervisory claims against Defendants City of Newark and Police Chief Darnell Henry. forth that an unconstitutional policy or custom of the municipality led to his or her injuries, or that they were caused by a failure or inadequacy by the municipality that reflects a deliberate or conscious choice. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (quoting Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)). Plaintiff alleges the City of Newark and Henry f the United States and the State of New Jersey . . . pertaining to the use of force and lawful arrests, thereby creating within the City of Newark and its Police Department, an atmosphere of lawlessness in which Police Officers employ excessive and illegal force and violence and engage in illegal arrests and detentions, and such acts are condoned and D.E. 1 ¶ 37. Additionally, he alleges that they maintained policies or customs exhibiting deliberate indifference to the constitutional rights of 4 Plaintiff argues that the conspiracy claim is not time-barred because his malicious prosecution claim did not accrue until February 2020, but there are no overt acts alleged in furtherance of a conspiracy to maliciously prosecute Plaintiff. 7 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 8 of 16 PageID: 419 Id. ¶¶ 38Chief Darnell Henry have failed to provide training and supervision regarding lawful arrests to police officers which constitutes negligence, gross negligence and deliberate indifference to the Id. ¶ 43. The Court infers that Plaintiff is alleging both kinds of municipal liability claims. McTernan v. City of York, PA, 564 F.3d 636, 658 (3d proximate cause of his injuries. He may do so by demonstrating an affirmative link between the policy or custom and the particular constitutional viol Est. of Roman, 914 F.3d at 798. For the second theory of liability, a plaintiff sufficiently pleads deliberate indifference by showing that situation involves a difficult choice or a history of employees mishandling, and (3) the wrong Forrest, 930 F.3d at 106 (quoting Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)). Monell or supervisor liability claim is properly viewed as a § 1983 claim (or as a component of a § 1983 claim), and it is subject to the same two-year statute of limitations as the Waselik v. Twp. of Sparta, No. 16-4969, 2017 WL 2213148, at *5 (D.N.J. May 18, 2017). Plaintiff alleges that the City of Newark had a policy or custom that caused police officers to use excessive force during their false arrest of Plaintiff on October 9, 2018. As previously discussed, Plaintiff s excessive force and false arrest claims are barred by the statute of limitations. Therefore, his claims that municipal policies or customs caused those injuries are also 8 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 9 of 16 PageID: 420 time-barred. His claims that the failure to train and supervise police officers constituted deliberate indifference are also based on the alleged use of excessive force and false arrest, making these claims time-barred as well. Therefore, the Court will dismiss Count Four with prejudice. 5 E. Counts Five and Six Violation of the New Jersey Civil Rights Act Count Five raises excessive force and false arrest claims under the New Jersey Civil Rights Act, N.J.S.A. § 10:6-1, et seq. Count Six raises claims of false arrest and false imprisonment. Id. at 11. The NJCRA was modeled after 42 U.S.C. § 1983, and creates a private cause of action for violations of civil rights secured under the New Jersey Constitutions. . . . This district has repeatedly interpr Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011) (citing cases). Plaintiff s NJCRA claims are subject to the same principles and legal requirements, so his NJCRA excessive force and false arrest claims are barred by the statute of limitations for the same reasons as his § 1983 excessive force and false arrest claims. Count Five will be dismissed as time-barred. Count Six is not timebarred to the extent it alleges false imprisonment. F. Counts Seven, Eight, and Nine State Tort Claims Counts Seven, Eight, and Nine allege state tort claims of negligence, gross negligence, and negligent and intentional infliction of emotional distress, respectively. D.E No. 1 at 12-14.6 5 Plaintiff argues that the policy-or-custom and failure-to-train claims based on his malicious prosecution claim should not be dismissed as time-barred because that claim did not accrue until his acquittal in 2020. D.E. 10 at 9. Count Four does not make factual allegations from which the Court could reasonably infer that a policy or custom or deliberate indifference led to the alleged malicious prosecution. papers. The Court has an obligation to liberally construe pro se pleadings; this courtesy does not Jackson v. Cnty. of Cumberland, No. 19-18755, 2020 WL 7334187, at *2 (D.N.J. Dec. 14, 2020) (citing Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)). 6 The Court has supplemental jurisdiction over Plaintiff s state law claims. 28 U.S.C. § 1367(a). 9 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 10 of 16 PageID: 421 Plaintiff concedes these claims are time-barred. D.E. 10 at 11. Accordingly, the Court will dismiss Counts Seven, Eight, and Nine with prejudice. G. Count Ten Malicious Prosecution Plaintiff alleges Defendant Police Officers prosecuted under false criminal complaint against the Plaintiff in order to cover up their D.E. 1 ¶¶ 67-68. malicious prosecution tort as follows: (i) the suit or proceeding was instituted without any probable cause ; (ii) the motive in instituting the suit was malicious, which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and (iii) the prosecution terminated in the acquittal or discharge of the accused. Thompson v. Clark, 142 S. Ct. 1332, 1338 (2022) (quoting T. Cooley, Law of Torts 181 (1880)). The City of Newark Defendants argue Plaintiff has not satisfactorily alleged the first and second elements. [p]robable cause exists if there is a the crime at issue. Castro v. New Jersey, 521 F. Supp. 3d 509, 518 (D.N.J. 2021) (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000); Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)) (alteration in original). ]robable cause to arrest exists when the facts and circumstances within the arresting officer s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested. 71 F.3d 480, 483 (3d Cir. 1995) Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir. 2005). 10 Orsatti v. New Jersey State Police, Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 11 of 16 PageID: 422 The parties have submitted documents outside of the pleadings for the Court s consideration, including the incident report, affidavit of probable cause, and victim s medical records erally consider only the allegations contained Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993) exception to the general rule is that a document integral to or explicitly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996), superseded on other grounds by 15 U.S.C. § 78u 4(b)(2)) (emphasis omitted) (alteration in original). The victim s medical records do not fall in either of these categories, so the Court may not consider them during the motion to dismiss. The incident report and affidavit of probable cause are arguably public records, but the Court would deny the motion to dismiss this claim regardless of whether those items are considered. On a motion to dismiss under Rule 12(b)(6), the Court asks only whether Plaintiff has pled sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence of his claims. Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). all . . . factual allegations to be true, construe those truths in the light most favorable to the plaintiff, and then draw all reasonable inferences from the Id. Here, Plaintiff alleges that the victim falsely identified Plaintiff as the attacker and that the police knew the identification was false. D.E. 1 ¶¶ 14, 69. t against the Plaintiff Id. ¶ 68. It is not the Court s function at this juncture to weigh the credibility of the victim or determine whether the affidavit of probable cause to arrest Plaintiff 11 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 12 of 16 PageID: 423 was purposely false; it must accept Plaintiff s factual allegations as true. If Plaintiff s factual allegations are true, City of Newark police officers began criminal proceedings against Plaintiff knowing that he did not commit the assault in order to cover up their own actions. This satisfies the pleading requirements. The Court will not dismiss the malicious prosecution claim against the City of Newark Defendants. H. Count Eleven 42 U.S.C. § 1983 Monell Claim Plaintiff agrees that his Count Eleven, alleging a Monell claim based on Defendants -detaining inmates past their courtshould be dismissed against the City of Newark Defendants. D.E. 10 at 15. The Court will therefore dismiss this claim with prejudice. I. Count Twelve Negligent Hiring/Supervision/Municipal Liability/Respondeat A claim for negligent hiring, supervision, or retention, requires the plaintiff to plead facts demonstrating that: particular unfitness, incompetence, or dangerous attributes of the employee, (2) the employer could reasonably have foreseen that these qualities created a risk of harm to other persons, and (3) the employer s negligence and the employee s unfitness or dangerous characteristic proximately caused the Hoffman v. Silverio-Delrosar, No. 20-13291, 2021 WL 2434064, at *3 (D.N.J. June 15, 2021) (alteration in original). that (1) the defendant owed a duty of care to the plaintiff to properly train its employees, (2) defendant breached that duty of care, (3) defendant s breach was the proximate cause of plaintiff s 12 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 13 of 16 PageID: 424 injury, and (4) defendant Id. at *3-4 (citing Brijall v. Harrah s Atl. City, 905 F. Supp. 2d 617, 621 (D.N.J. 2012)). Plaintiff has not stated negligent hiring or supervision claims, nor has he stated a claim of municipal liability. Plaintiff broadly alleges that the City of in the selection of its employees, agents, or servants D.E. 1 ¶ 90, but he does not allege any facts supporting an inference that the employees were particularly unfit, incompetent, or dangerous before their employment or that the City of Newark knew or had reason to know of any unfitness prior to hiring. He also provides no specific allegations as to how the City of Newark failed to supervise its employees. The complaint merely parrots the claims elements, and restatements of the elements of a claim are legal conclusions not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). Rule 8 requires the-defendant-unlawfully-harmed- Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Without sufficient factual support, Plaintiff fails to plausibly plead a negligent supervision or hiring claim or a municipal liability claim. The Court will dismiss Count Twelve without prejudice. J. State Defendants The State Defendants move to dismiss the claims against them under Rule 12(b)(1) and (6). D.E. 29. The motion is unopposed. The Court will grant the motion and dismiss the complaint against the State Defendants with prejudice. The State of New Jersey is completely immune from suit in federal court. The Eleventh States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any 13 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 14 of 16 PageID: 425 U.S. Const. amend. XI. Section 1983 does not abrogate New Jersey s immunity, see Quern v. Jordan, 440 U.S. 332, 340 41 (1979), and New Jersey has neither consented to suit nor waived its Eleventh Amendment immunity here. In addition, New Jersey is also immune from suit under its own laws in federal court. This Court has no jurisdiction to hear supplemental stateGarcia v. Richard Stockton Coll. of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002). Therefore, all claims against the State of New Jersey must be dismissed with prejudice. extends to state agencies and state officers, Est. of Bardzell v. Gomperts, 515 F. Supp. 3d 256, 267 (D.N.J. 2021) (quoting Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)), aff d, No. 21-1906, 2022 WL 843483 (3d Cir. Mar. 22, 2022). Court considers three factors: (1) whether the money to pay for the judgment would come from the state; (2) the status of the agency under state law; and (3) what degree of autonomy the agency Est. of Lagano v. Bergen Cnty. Prosecutor s Off., 769 F.3d 850, 857 (3d Cir. 2014) (citing Fitchik, 873 F.2d at 659). prosecutors act in their law enforcement or investigatory capacity, they act as agents and officers of the State, qualifying as State employees under N.J.S.A. 59:1 3 for the purpose of determining vicarious liability under the TCA. Est. of Bardzell, 515 F. Supp. 3d at 268-69 (quoting Wright v. State, 778 A.2d 443, 462 (N.J. 2001)). The Court considers the first Fitchik factor to be satisfied. The second factor, the status of the agency under state law, also favors the Prosecutor s Office. 14 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 15 of 16 PageID: 426 Coleman v. Kaye, 87 F.3d 1491, 1500 (3d Cir. 1996); see also Wright, 778 A.2d at 452 (quoting Coleman); N.J. Const. art. VII, § 2, ¶ 1. The Prosecutor s Office constitutionally established office satisfies the second Fitchik factor which considers the status of an defendant for sovereign immunity purposes. Rouse v. New Jersey Dep t of Health & Hum. Servs., No. 15-01511, 2015 WL 5996324, at *3 (D.N.J. Oct. 13, 2015) . Fitchik factor is satisfied here, where a county prosecutor acting with Id. (citing Wright, 778 A.2d at 455, s law enforcement function is unsupervised by county government or any other agency of local government, but remains at all times subject to the Wright, 778 A.2d at 462. prosecutors are uniquely subject at all times to the Attorney General s statutory power to supervise and supersede them Id. Ultimately responsibility in matters related to the enforcement of the State s criminal laws that have been Id. (citing N.J.S.A. § 52:17B 98; N.J.S.A. § 52:17B 103). After reviewing the Fitchik factors, the Court concludes that New Jersey s sovereign immunity extends to the Essex County Prosecutor s Office. It is therefore immune from suit in federal court, and the claims against it must be dismissed. The Prosecutor s Office also has absolute prosecutorial immunity in addition to its sovereign immunity. s judicial Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). See also Burns v. Reed, 500 U.S. 478, 486 (1991); Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020). even where [he or she] acts without a good faith belief that 15 Case 2:22-cv-00829-EP-JRA Document 46 Filed 12/19/22 Page 16 of 16 PageID: 427 Kulwicki, 969 F.2d at 1464. Prosecutorial immunity extends to claims arising from their conduct in beginning a prosecution, including soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, Kulwicki, 969 F.2d at 146, presenting a state s case at trial, Imbler, 424 U.S. at 431, and appearing before a judge to present evidence, Burns, 500 U.S. at 491-92 Fogle, 957 F.3d at 160. Plaintiff s claims against the Prosecutor s Office stem from its charging and prosecuting Plaintiff for assault, actions that concern its law enforcement and investigative roles. Therefore, the Prosecutor s Office is immune from suit due to prosecutorial immunity as well as sovereign immunity. IV. CONCLUSION For the reasons stated above, the Court will grant the State Defendants motion to dismiss. The Court will grant the City of Newark Defendant s motion to dismiss in part. Counts One, Four, Five, Seven, Eight, Nine, and Eleven are dismissed with prejudice, Fed. R. Civ. P. 12(b)(6). Counts Two, Three, and Six are dismissed with prejudice to the extent they are based on excessive force and false arrest claims. Count Twelve is dismissed without prejudice, Fed. R. Civ. P. 12(b)(6). Count Ten remains pending against the City of Newark Defendants, as do Counts Two, Three, and Six to the extent they are based on false imprisonment allegations. An accompanying Order will be entered. December 19, 2022 Date EVELYN PADIN U.S. District Judge 16

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