2014 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-15-2014 

# Es t a t e F r a nk P

. L a g a no v . B e r ge n C oun t y P r o sec ut ors O ffi

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ock e t N o . 13-3232

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2014

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2014 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. R e c omme nde d C it a t ion

" Es t a t e F r a nk P

. L a g a no v . Be r g e n C oun t y P r os e c ut or s O ffi " (2014). 2014 D e cisio n s

. P a pe r 1077. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2014/1077PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 13

- 3232

_____________
ESTATE OF FRANK P. LAGANO, Appellant

v.

BERGEN COUNTY PROSECUTOR’S OFFICE; MIC H AEL MORDAGA; VARIOUS J OHN DOE AND JANE DOE DEFENDANTS, whose individual identities or wrongful acts are not now known to Plaintiff

_____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2

- 12

- cv

- 05441 ) District Judge: Honorable Faith S. Hochberg

_____________ Argued March 19 , 2014

Before: CHAGARES, GREENAWAY, JR., and

VANASKIE

, Circuit Judges.

(Filed October 15, 2014 )2 William H. Buckman , Esq. William H. Buckman Law Firm 110 Marter Avenue, Suite 209 Moorestown, NJ 08057

Edward M. Koch, Esq. White & Williams 1650 Market Street 1800 One Liberty Philadelphia, PA 19103

David M. Ragonese, Esq. [Argued] White & Williams 457 Haddonfield Road S uite 400, Liberty View Cherry Hill, NJ 08002 Attorney s for Plaintiff/Appellant

John J. Hoffman , Esq. Lisa A

. Puglisi , Esq. Brian G. Flanagan , Esq. [Argued] Eric S. Pasternack , Esq. Office of Attorney General of New Jersey PO Box 112 25 Market Street Richa rd J. Hughes Justice Complex Trenton, NJ 08625 Attorneys for Defendants/Appellees

_____________

OPINION

_____________3 VANASKIE, Circuit Judge.

Frank P. Lagano was fatally shot on April 12, 2007

, in front of a diner in East Brunswick, New Jersey. More than five years later, in August 2012, the Estate of Frank P. Lagano (“the Estate”) filed suit against , inter alia, the Bergen County Prosecutor’s Office (the “BCPO”) and former BCPO Chief of Detectives Michael Mordaga , alleging that BCPO
pe rsonnel improperly revealed to members of organized crime that Lagano was an informant and this disclosure led to Lagano’s murder. Specifically, t he Estate contends the alleged disclosure of Lagano’s status as a confidential informant established a state

- created danger in violation of his due process rights . The Estate also challenges a December 2004 search of Lagano’s home and seizure of his property

. The BCPO and Mordaga (collectively, “Appellees”) each filed motions to dismiss the Estate’s complaint u nder Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

. The District Court granted both motions and dismissed the Estate’s claims in their entirety. For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceed ings consistent with this opinion.

I.

According to the Estate, Lagano and Michael Mordaga shared a long

- term business and personal relationship. 1

1 As is required when reviewing a district court’s dismissal under Rules 12(b)(1) and 12(b)(6), our recitation of the facts assumes the truthfulness of the Estate’s well

- pled allegations. Rea v. Fed. Investors , 627 F .3d 937, 940 (3d Cir.4 Lagano was also the subject of an organized crime investigation by the BCPO, where Mordaga served as Chief of Detectives

. On December 1, 2004, BCPO detectiv es executed a search warrant at Lagano’s home in New Jersey, during which they seized more than $50,000 in cash along with other items . Detectives from the BCPO also executed search warrants on Lagano’s safe deposit boxes, which resulted in the seizure of additional funds. Lagano was charged with several crimes , including racketeering, promoting gambling, criminal usury, and conspiracy.

After Lagano was charged , Mordaga allegedly brought Lagano to his offi ce and instructed him to retain a specific attorney with the assurance that the attorney could “make his legal problems go away.” ( Estate’s Br. 12.) Lagano did not follow Mordaga’s instructions. Instead

, according to the Estate’s allegations, Lagano agr eed to serve as a confidential informant for James Sweeney, who was employed at the time

as an investigator with the Criminal Justice Division of the New Jersey Attorney General’s Office (“the DCJ”).

Mordaga subsequently attended a dinner meeting with Laga no, where he once again urged Lagano to hire the attorney he recommended, assuring him that, if he did so, “half his money would be returned and . . . [he] would serve no prison time.” (App. 31a ¶ 28 .) Lagano rejected Mordaga’s offer, and their relations hip “soured.” ( Id. 30a ¶ 21.)

2010); Gould Elec. Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000).5 The Estate avers that sometime thereafter, “[BCPO] personnel . . . disclosed to alleged members of traditional Organized Crime families . . . that [Lagano] had been an informant.” ( Id. 32a ¶ 32.) On April 12, 2007, more tha n two years after his arrest, Lagano was shot and killed. The Estate
argues that Lagano’s death resulted from the actions of Mordaga and other BCPO employees , who allegedly “conspired to illegally arrest and steal funds from Lagano in 2004 and, then, inte ntionally, and with reckless disregard for Lagano’s safety, conspired to disclose Lagano’s status as a confidential informant to k nown members of Organized Crime.” ( Estate’s Br. 9.)

O n August 29, 2012, the Estate filed a three

- count complaint against the State of New Jersey, the BCPO, Mordaga, and various John and Jane Doe Defendants

. The bulk of the Estate’s factual averments were based on allegations made by James Sweeney, who is now deceased, in a complaint he filed in 2010 (“the Sweeney Complaint”). 2

2 Sweeney served as Sergeant State Investigator for the DCJ. Following the termination of his employment in September 2008, Sweeney filed suit against the St ate of New Jersey, the New Jersey Attorney General’s Office, the DCJ, and several officers, alleging a violation of the New Jersey Racketeer Influenced and Corrupt Organizations Act (“NJRICO”), N.J. Stat. Ann. § § 2C:41

- 1 et. seq. The Sweeney Complaint all eged widespread corruption within the BCPO, which he believed was involved in “business dealings with alleged members of Organized Crime families and the unlawful seizure, retention and use of monies by high ranking members of that County’s Prosecutor’s Of fice.” (App. 114a.) It also alleged that several officials at the DCJ knowingly6 The Estate contends that it discovered the facts relevant to this appeal through the Sweeney Complaint.

T he Estate filed a first amended complaint (hereinafter, “the amended c omplaint”) on December 12, 2012 , which assert s the same claims as averred in the original complaint but omits the State of New Jersey as a defendant. Count 1 presents a due process claim under the state

- created danger theory, asserting that Appellees violated Lagano’s rights by disclosing his identity as a confidential informant

, thu s proximately causing his d eath. Count 2 asserts the same claim, but under the New Jersey Constitution, made actionable via the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6

- 1 to

- 2 (“NJCRA”). Count 3 asserts violations of the Fourth Amendment’s pr ohibition against unreasonable searches and seizures, made actionable by 42 U.S.C. §§ 1983 and 1985

.

attempted to obstruct Sweeney’s investigation into this corruption.

Most relevant to this appeal, the Sweeney Complaint included allegations related to Mordaga’s relationsh ip with Lagano, the BCPO’s organized crime investigation, and the search and seizure at Lagano’s home, which Sweeney claimed was improper. Significantly, following Lagano’s murder on April 12, 2007, Sweeney alleged that he sent an email to a superior “adv ising him of sensitive data concerning [Mordaga] and [Lagano’s] relationship,” because he believed this data “could potentially have created a motive for [Lagano’s] murder.” (App. 116a.)7 The BCPO filed a motion to dismiss, and t he District Court granted the motion on March 22, 2013. Mordaga then filed a motion to dismiss, which the Distri ct Court granted on June 19, 2013. The Estate filed this timely appeal.

II.

The District Court had jurisdiction under 28 U.S.C. § § 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. 1291. We review de novo a district court’s dismissal under Rule 1 2(b) (1)

, see Common Cause of Pa. v. Pa. , 558 F.3d 249, 257 (3d Cir. 2009), a s well as Rule 12(b) (6)

, see Wiest v. Lynch , 710 F.3d 121, 128 (3d Cir. 2013).

III.

The Di strict Court’s dismissal rested on several alternative theories: the District Court dismissed all counts on the basis that neither Mordaga nor the BCPO is a “person” amenable to suit under 42 U.S.C. § 1983, § 1985, or the NJCRA; it dismissed all counts against the BCPO on the basis that the BCPO is entitled to Eleventh Amendment sovereign immunity ; it dismissed Counts 1 and 2 against Mordaga on the basis that he is entitled to qualified immunity; and it dismissed Count 3 on the alternative basis that it is barred by the statute of limitations. We will discuss each in turn.

A. The BCPO and Mordaga as “Persons”

We begin with the question of whether Appellees are “persons” amenable to suit under 42 U.S.C. § 1983, § 1985, or the NJCRA

. In its March 22, 2013 opinion, the District Court held that the BCPO is not a “person” subject to liability under8 these p rovisions

. I n its June 19, 2013 opinion, the District Court concluded that Mordaga is not a “person” subject to suit under the federal c ivil r ights laws

. Because the District Court erred in reaching these conclusion s , we will vacate the dismissal on this ground.

1. Sections 1983 and 1985

Section 1983 imposes liability on “[e]very person who, under color of any statute, ordinance

, regulation, custom, or usage , of any State . . . subjects . . . any citizen of the United States or other person within the jur isdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. ” 42 U.S.C. § 1983 (emphasis added)

. S ection 1985 imposes liability “ if
two or more persons ” conspire to interfere with civil rights in

a m anner enumerated therein. Id. § 1985 (emphasis added). 3

3 We have never explicitly decided whether the term “person” has the same meaning under §§ 1983 and 1985. Nevertheless, the district courts in our Circuit have consistently answered that question in the affirmative. See,
e.g. , Carabello v. Beard , 468 F. Supp. 2d 720, 723 n.2 (E.D. Pa. 2006) ; Wright v. Phila. Hous. Auth.

, No. 94

- 1601, 1994 WL 597716, at *2

- 3 (E.D. Pa. 1994) ; Rode v. Dellarciprete

, 617 F. Supp. 721, 723 n.2 (M.D. Pa. 1985). Here, neither party argues that “person” means something different under § 1985 than under § 1983, and we see no reason why this shoul d be so. We , like our sister Court of Appeals in Owens v. Haas , 601 F.2d 1242, 1247 (2d Cir. 1979)

, therefore assume that “person” has the same meaning under both §§ 1983 and 1985

.9 The District Court found that the BCPO was an arm of the State of New Jersey, and that Mordaga, as BCPO Chief of Detectives, was a state official. In Will v. Michigan Department of State Police , 49 1 U.S. 58, 71 (1989 ) , the Court held that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” 4 Local governmental bodies and their officials, by contrast, are regarded as “persons” amenable to suit under § 1983. See Monell v. Dep’t of Social Servs. , 436 U.S. 658, 690 (1978).

Because local governmental bodies and their officials are “p ersons” under §§ 1983 and 1985

, and state agencies and their officials acting in their official capacity are not, we must de cide initially whether the BCPO is an arm of the State of New Jersey or of Bergen County

. If the BCPO is an arm of the State of New Jersey, we must then decide whether Mordaga has been sued exclusively in his official capacity as BCPO Chief of Detectives

. 5

Our resolution of the first question

— whether the BCPO is an arm of the State

— is guided by Coleman v. Kaye

, 87 F.3d 1491 (3d Cir. 1996). In Coleman , we held that “when [ New Jersey ] county prosecutors engage in classic law

4 As to officials of the State, the Court in Will explained that “[o]bviou sly, state officials literally are persons[,] [b]ut a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” 491 U.S. at 71.

5 Of course, a state official sued in his or her personal capacity is amenable to suit under §§ 1983 and 1985. See Hafer v. Melo , 502 U.S. 21, 31 (1991).10 enforcement and investigative fu nctions, they act as officers of the State.” Coleman v. Kaye , 87 F.3d 1491, 1505 (3d Cir. 1996). When county prosecutors perform administrative functions “unrelated to the duties involved in criminal prosecution,” however, they act as county officials. Id. at 1505

– 06.

Here, the District Court found that “ the BCPO was acting within its classical function of investigating criminal activities and conducting criminal prosecutions with respect to Mr. Lagano.” (App. 13a

. ) Similarly, the District Court found that Mordaga “was acting as the Chief of Detectives in the BCPO, a state agency

, ” and that Mordaga was acting “in his official capacity in connection with the allegations made by Lagano’s Estate.” (App. 8a.) Based upon these findings, the District Court concluded that neither the BCPO nor Mordaga were amenable to suit under §§ 1983 and 1985

, and dismissed those claims accordingly.

It is, of course, true that in some respects the amended complaint avers activity within the BCPO and actions taken by Mordag a that fall within the ambit of “classic law enforcement and investigative functions.” Coleman , 87 F.3d at 1505. But the amended complaint must be read as a whole, and its averments and the inferences reasonably drawn from those averments must be viewed in the light most favorable to the plaintiff. See S.H. ex rel. Durell v. Lower Merion Sch. Dist. , 729 F.3d 248, 256 (3d. Cir. 2013). In this case, the amended complaint is replete with allegations that Mordaga and others within the BCPO were not performi ng the classic functions of law enforcement or criminal investigators.

For instance, the amended complaint alleged that Lagano and Mordaga “enjoyed a personal and business11 relationship,” (App. 29a ¶ 11), which included “vacation[ing], visit[ing

, ]

. . . s oc ializ[ing

, ]” and “multiple business ventures.” ( Id. ¶ 12 , 14. ) The amended complaint also allege d that Mordaga met with Lagano after Lagano’s h ome was searched, provided him with the name of a specific attorney, and assured Lagano that, if he retained th is attorney, “90% of [his ] problems would go away.” ( Id. 30a ¶ 20.) After Lagano failed to retain the recommended attorney, t he amended complaint aver red that Mordaga attended a “dinner meeting,” during which Mordaga advised Lagano that “half his money w ould be returned and guaranteed that [Lagano] would serve no prison time if [he] hired the attorney Mordaga recommended.” ( Id. 31a ¶ 27. ) As to the disclosure of Lagano’s identity as a confidential informant , the amended complaint alleged that “[BCPO] pe rsonnel thereafter disclosed to alleged members of traditional Organized Crime families arrested in raids on December 1, 2004 that [Lagano] had been an informant.” ( Id. 32a ¶ 32

. )

The amended complaint clearly alleges that Mordaga’s relationship with Laga no extended beyond Mordaga’s official role as BCPO Chief of Detectives during the BCPO investigation of Lagano . It can also r easonably be inferred from the allegations that Mordaga was not performing classic investigatory and prosecutorial functions when he urged Lagano to retain a specif ic attorney on the assurance that this attorney could make Lagano’s problems disappear . It can also be inferred from the amended complaint that the alleged disclosure of Lagano’s status as a confidential informant was

unr elat ed to any lawful investigative or prosecutorial12 function

. 6 These allegations support a reasonable inference that neither Mordaga nor the BCPO acted within their classic investigatory and prosecutorial functions with respect to the
state

- created danger claim advanced by the Estate. Accordingly, the District Court erred in holding that the amended complaint allege d that the BCPO and Mordaga acted exclusively in classic law enforcement and investigative functions so as to make them part of the S tate and thus not amenable to suit under §§ 1983 and 1985.

Even if the amended complaint could not be viewed as alleging conduct outside classic law enforcement and investigative functions, t he dismissal as to Mordaga was incorrect for an additional reason. Mordag a is sued not only in his official capacity, but also in his personal capacity

. ( S ee Estate Br. 31

. ) Accordingly, he most certainly is amenable to suit as a “person” under §§ 1983 and 1985. See Hafer , 502 U.S. at 27. In Hafer , the Supreme Court explici tly rejected the theory that “state officials may not be held liable in their personal capacity for actions they take in their official capacity.” Id. Thus, under Hafer , the District Court erred in

6 Lagano’s complaint intermittently describes this disclosure in language that suggests it was intentional ( see, e.g. , App. 32a ¶ 32 (“[ BCPO] personnel thereafter disclosed . . .”) ) , and in language that suggests it may have been inadvertent ( see, e.g. , id. ¶ 36 (“By failing to protect from disclosure . . . .”) ) . The District Court is free to consider, therefore, whether the complaint suf ficiently pled the requisite affirmative act on the part of the BCPO or Mordaga that is required to state a claim under the state

- created danger theory. See Phillips v. Cty. of Allegheny , 515 F.3d 224, 235 (3d Cir. 2008).13 dismissing the amended complaint against Mordaga in his personal capacity.

2. New Jersey Civil Rights Act

In addition to bringing suit under t he federal civil rights statutes, the Estate raised a claim under the NJCRA, N.J. Stat. Ann. § 10:6

- 1 to

- 2 . Like 42 U.S.C. § 1983, the NJCRA “premise[s] liability on the conduct of a ‘person.’” Lopez

- Siguenza v. Roddy , No. 13

- 2005 (JBS/JS), 2014 WL 1298300, at * 7 (D.N.J. Mar. 31, 2014)

. New Jersey district courts have interpreted the NJCRA as having incorporat ed the Supreme Court’s decision in Will that , for purposes of § 1983, states and state officials acting in their official capacity are not amenable to suit

. See id. at *5 ; Didiano v. Balicki , Civ. No. 10

- 4483 (RBK/AMD), 2011 WL 1466131, at *8 (D.N.J. Apr. 18, 2011); Slinger v. New Jersey , Civ. N o . 07

- 5561 (DMC), 200 8 WL 4126181, at *7

– 8 (D.N.J. Sept. 4, 2008), rev’d in part , 36 6 F. App’x 357 (3d Cir. 2010). Because the District Court erred in conclu ding at this stage that neither the BCPO nor Mordaga were “persons” amenable to suit under §§ 1983 and 1985 , it likewis e erred in concluding that they are not “persons” under the NJCRA. 7 Accordingly, we will vacate the dismissal of Count 2 on that ground as well.

7 The District Court and the part ies cite N.J. Stat. Ann. § 1:1

- 2, which defines “person” for purposes of New Jersey law as:

corporations, companies,

associations, societies, firms, partnerships and joint stock companies as well as individuals,14 B. Eleventh Amendment Sovereign Immunity

The District Court also dismissed the amended complaint as to the BCPO on the alternative basis that the

unless restricted by the context to an indiv idual as distinguished from a corporate entity or specifically restricted to 1 or some of the above enumerated synonyms and, when used to designate the owner of property which may be the subject of an offense, includes this State, the United States, any ot her State of the United States as defined infra and any foreign country or government lawfully owning or possessing property within this State.

(emphasis added). The District Court’s analysis focused solely on whether the state was used here “to designate the owner of property which may be the subject of an offense,” and concluded that it was not. While we agree with the District Court that this exception for property disputes is not implicated here, we must nevertheless vacate the dismissal pursuant to t he NJCRA because the District Court’s analysis assumes that the BCPO and Mordaga acted as agents of the state, and we hold that the District Court erred in drawing that conclusion at this stage.15 BCPO is protected by Eleventh Amendment sovereign i mmunity. The Eleventh Amendment of the United States Constitution provides:

The Judicial power of the United 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 Foreign State.

U.S. Const. amend. XI

. Sovereign immunity extends to state agencies and state officers

, “as long as the state is the real party in interest.” Fitchik v. N

. J

. Transit Rail Operations , 873 F.2d 655 , 65 9 (3d Cir. 1989)

. It does not extend to counties and municipalities. Bolden v. Se. Pa. Transp. Auth. , 953 F.2d 807, 813 (3d Cir. 1991) ( “[A]lthough political subdi visions of a state, such as counties and municipalities, fall within the term ‘State’ as used in the Fourteenth Amendment, political subdivisions are not ‘State[s]’ under the Eleventh Amendment.” ). To determine whether the state is the real party in inter est, this 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 has. Fitchik , 873 F.2d at 659

. Rather than applyin g Fitchik to the facts alleged by the Estate to reach the conclusion that the BCPO was entitled to Eleventh Amendment sovereign immunity, the District Court relied solely on our decision in Coleman

. The District16 Court’s reading of Coleman is erroneous. F irst, Coleman never mentions Fitchik . And second, Coleman does not address Eleventh Amendment sovereign immunity. Instead, Coleman focuses on the question of what entities and public officials may be regarded as arms and officials of the State for the pu rpose of determining whether the named entity and public official are to be regarded as “persons” subject to suit under § 1983. The District Court’s analysis improperly conflates the jurisprudence interpreting the term “person” in the context of § 1983 wi th the concept of Eleventh Amendment sovereign immunity . Although the existence of Eleventh Amendment sovereign immunity was a factor considered by the Supreme Court in Will , the two concepts are analytically distinct

. See Hafer , 502 U.S. at 30 (“Most

ce rtainly, Will’s holding does not rest directly on the Eleventh Amendment.”)

. Appellees point to our unpublished decision in Beightler v. Office of Essex Cnty. Prosecutor , 342 Fed. App ’ x 829, 832 (3d Cir. 2009) (per curiam), which stated that Coleman “esse ntially analyzed the same factors presented in Fitchik ,” as support for the District Court’s conclusion that the Fitchik factors are met any time a court finds that county prosecutors act as arms of the state by performing classic law enforcement functions

. However, w e are not bound or persuaded by Beightler ’s statement that the Fitchik inquiry is satisfied whe n ever a county prosecutor engages in classic prosecutorial functions. We therefore conclude that Fitchik provides the proper framework for analyzin g Eleventh Amendment sovereign immunity as it applies to county prosecutors , and on remand the District Court must apply17 Fitchik to determine whether the BCPO is entitled to Eleventh Amendment sovereign i mmunity in this case

. 8

C. Qualified Immunity

We turn n ow to the District Court’s finding that Mordaga is protected by qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan , 555 U.S. 223, 231 (2009) ( quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) ) . To resolve a claim of qualified immunity, a court must engage in a two

- pron ged analysis to decide (1) whether the plaintiff alleged sufficient facts to establish the violation of a constitutional right, and (2) whether the right was “clearly established” at the time of the defendant’s actions. Id. at 232.

The Estate’s claim i s grounded in the D ue P rocess C lause of the Fourteenth Amendment, which provides that no State shall “deprive any person of life, liberty

, or property, without due process of law

. . . . ” U.S. Const. amend. XI V , §

8 Of course, the fact that we have held that the amended comp laint does not allege that the BCPO was acting at all times within its classic prosecutorial investigative capacity is enough to undermine the District Court’s Eleventh Amendment ruling. We emphasize, however, that the Eleventh Amendment inquiry is analyt ically distinct from the question of whether a county entity is a “person” for § 1983 purposes, and Fitchik controls the Eleventh Amendment inquiry.18 1

. We have recognized that “[i]ndividual s have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment. ” Phillips , 515 F.3d at 235 . In general, this liberty interest does not require the state to affirmatively prote ct its citizens. DeShaney v. Winneba go Cnty. Dep ’ t of Soc. Servs. , 489 U.S. 189, 195

– 96 (1989). One exception to this general rule is the state

- created danger theory, and it is under this theory that the Estate proceeds on its due process claims.

To es tablish a claim under the state

- created danger theory, a plaintiff must prove that :

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the conscience;

(3) a relationship betwe en the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or19 that rendered the citizen more vulnerable to danger than had the state not acted at all.

Bright v. Westmoreland Cnty. , 443 F.3 d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes omitted).

The Estate asserts that Appellees

— either Mordaga or another employee within the BCPO

— disclosed Lagano’s status as a confidential informant to members of organized crime families, and that this disclosure established a state

created danger that resulted in his murder. Mordaga responded that he is entitled to qualified immunity on the
state

- created danger claims because the Estate failed to establish either a violation of a constitu tional right, or that the constitutional right was clearly established at the time of the alleged violation.

The District Court focused on the second prong of the qualified immunity analysis, holding that the constitutional right claimed to have been vio lated was not clearly established at the time of Lagano’s murder . In reaching this conclusion, the District Court reasoned that because “[t]here are no published cases that extend the state created danger right to confidential informants in the Third Circ uit[,] . . . it would be unfair to hold that a constitutional right was ‘clearly established.’” (App. 6a

– 7a.) The District Court defined the right asserted by the Estate as “a confidential informant’s constitutional right to nondisclosure.” ( Id. )

We can not endorse the District Court’s unduly narrow construction of the right at issue, or its statement that the right was not clearly established. It has been clearly established in this Circuit for nearly two decades that a state

- created danger20 violates due process. See Kneipp v. Tedder , 95 F.3d 1199, 1211 (3d Cir. 1996) (holding that state

- created danger theory is “viable mechanism for establishing a constitutional violation.”). That we have not applied the state

- created danger theory in the context of a confidential informant is not dispositive on the qualified immunity defense. As the Supreme Court explained in Hope v. Pelzer , 536 U.S. 730 (2002)

, “[a]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Id. at 741 (internal citation and quotation marks omitted). Thus, the Estate can overcome Mordaga’s qualified immunity defense without proving that we have previo usly issued a binding decision recognizing a
state

- created danger in the context of the disclosure of a confidential informant’s status, and the District Court erred in requiring it to do so.

The focus of the qualified immunity inquiry is on the allegati ons made by the Estate. Specifically, the question is whether the facts averred by the Estate fall within the elements of the state

- created danger theory, and whether “it would be clear to a reasonable officer” that the alleged disclosure was unlawful und er the circumstances. Saucier v. Katz , 533 U.S. 194, 202 (2001). We express no opinion as to whether the amended complaint satisfies these inquiries, but, b ecause the District Court failed to apply the proper standard,

we must vacate the District Court’s decision in favor of Mordaga on the qualified immunity defense.

D. Statute of Limitations

T he District Co urt dismissed Count 3 on the alternative basis that it is barred by the statute of limitations.21 In determining the length of the statute of limitation s for a claim ar ising under § 1983, courts must apply the limitations period applicable to personal

- injury torts in the State in which the cause of action arose. Wallace v. Kato , 549 U.S. 384, 387 (2007)

. In New Jersey, where Lagano’s claim arose, person al injury claims are governed by a two

- year statute of limitations. N.J. Stat. Ann. § 2A:14

- 2

. 9 Consequently , the
stat ute of limitations for Count 3 , which asserts a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizur es made actionable under § § 1983 and 1985, is two years

. Because the Estate did not file suit until August 29, 2012, the cause of action, to be timely, cannot have accrued earlier than August 29, 2010.

The date of accrual of a § 1983 claim is a matter of federal law

. Wallace , 549 U.S. at 388. We have described that inquiry as follows:

Accrual is the occurrence of damages caused by a wrongful
act

— “when a plaintiff has ‘a complete and present cause of action,’ that is, when ‘the plaintiff can file suit an d obtain relief.’” [ Wallace , 539 U.S. at 388] (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund

9 N.J. Stat. Ann. § 2A:12

- 2(a), in pertinent part, provides that “[e]very action at law for an injury to th e person caused by the wrongful act, neglect or default of any person within this State shall be commenced within 2 years next after the cause of such action shall have accrued . . . .”22 v. Ferbar Corp. of Cal. , 522 U.S. 192, 201 (1997)). As the Court in Wallace explained, “‘the tort cause of action accrues, and the statute of limit ations commences to run, when the wrongful act or omission results in damages.’” Id. at 391 (quoting 1 Calvin W. Corman, Limitation of Actions § 7.4.1 (1991)).

Dique v. N.J. State Police , 603 F.3d 181, 185

– 86 (3d Cir. 2010).

Here, t he search of Lagano’s h ome took place on December 1, 2004 . On January 13, 2005, t he BCPO brought a forfeiture action against Lagano under N.J. Stat. Ann. § 2C:65

- 1 , claiming that a total of $265,428 was seized from Lagano during the search . La gano filed an answer to the forfei ture action in 2005 , and t he Estate was substituted in Lagano’s place following his death in 2007. W ithout arguing for any specific date, Appellees contend that “[a]t the very latest, the theft claim accrued in 2007, when the Estate became a party to the forfeiture action, ” and that as a result, the statute of limitations would have run at the latest in 2009

. (Appellees’ Br. 40.) The District Court agreed, finding that the Estate “knew or should have known about the search and seizure claims at the time of filing of Lagano’s Answer on March 9, 2005, or at the latest, in 2007, when the Estate became involved in that action

. ” In this regard, the District Court observed that “[u]pon substitution into the forfeiture action, the Estate had access to Lagano’s documents and filings involving the search and seizur e matters.” (App. 16a.)23 T he Estate argues that the cause of action did not accrue until Sweeney filed his complaint in federal court in September 2010. 10 Although Lagano filed an answer to the forfeitur e action in 2005, the Estate still argues that the answer “merely acknowledges Lagano’s awareness of the search and se izure, not the illegality of it, ” and that the answer therefore did not put the Estate on notice that Lagano’s rights were violated. ( App ellant’s Br. 45.) Thus,

a ccording to the Estate, the cause of action did not accrue until the Sweeney Complaint was filed in September 2010

, and the statute of limitations did not expire until September

10 The relevant allegations in the Sweeney Complaint state that members of the BCPO “confiscated the monies from [Lagano’s] home and failed and/or refused to provide the family with a receipt of same when they requested an inventory,” (App. 111a ¶ 28), “searched the safe deposit box only after directing the bank representati ve to leave the room,” ( id. ¶ 30), “seized items from [Lagano’s] safe deposit box and failed and/or refused to provide a receipt of same,” ( id. ¶ 31), and that “after the arrest, [Lagano’s] relationship with [Mordaga] soured in part because [Lagano] clai med not all of his money and property was returned to him.” ( Id. 112a ¶ 36.) Perhaps most relevant to the claim asserted in Count 3, the Sweeney Complaint also states that Sweeney “advised his superiors . . . of potential corruption within the hierarchy of that County Prosecutor’s Office, including business dealings with alleged members of Organized Crime families and the unlawful seizure, retention and use of monies by high ranking members of that County Prosecutor’s Office. ” ( Id

. 114a ¶ 50 (emphasis ad ded).)24 2012

. Under this theory, the Estate’s August 2012 c omplaint would be timely.

The Estate ’s arguments are unpersuasive. Lagano’s home was searched and his property was seized in December 2004 , giving rise to the claim for damages

. The record demonstrates that Lagano himself knew about th e allegedly unlawfu l search and seizure by March 2005 at the latest, and thus had a complete cause of action at that time. See Dique

, 603 F.3d at 185

– 86. As a result, t he two

- year period of limitations expired in March 2007, before Lagano’s death the following month

. We t herefore hold that Count 3 is barred by the statute of limitations, and we will affirm the District Court’s dismissal of Count 3 accordingly.

IV.

We must address one final issue. The Estate argues that it should be permitted to file a second amended complai nt upon remand. We agree. We have held that whether or not a plaintiff seeks leave to amend, a district court considering a 12(b)(6) dismissal “must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips , 515 F.3d at 2 45 (citing Alston v. Parker

, 363 F.3d 229, 235 (3d Cir. 2004))

. Here, the District Court dismissed the Estate’s complaint against the BCPO with prejudice without making a finding that further amendment would be futile. This, too, was improper. The Estate must be permitted to file a second amended complaint unless the District Court makes a finding of futility.25 V.

For the foregoing reasons, we will affirm in part and vacate in part the judgment entered by the District Court, and remand for further pro ceedings consistent with this opinion.