2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-2014

Estate Frank P. Lagano v. Bergen County

Prosecutors Offi

Precedential or Non-Precedential: Precedential

Docket No. 13-3232

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3232

_____________

ESTATE OF FRANK P. LAGANO,

Appellant

v.

BERGEN COUNTY PROSECUTOR’S OFFICE;

MICHAEL MORDAGA; VARIOUS JOHN 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

Suite 400, Liberty View

Cherry Hill, NJ 08002

Attorneys 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

Richard 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 

personnel improperly revealed to members of organized 

crime that Lagano was an informant and this disclosure led to 

Lagano’s murder. Specifically, the 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 under 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 proceedings 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 detectives 

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 office 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 agreed 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 

Lagano, 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 relationship “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 than 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, intentionally, and with reckless disregard for 

Lagano’s safety, conspired to disclose Lagano’s status as a 

confidential informant to known members of Organized 

Crime.” (Estate’s Br. 9.)

On 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 State 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 alleged 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 Office.” (App. 114a.) 

It also alleged that several officials at the DCJ knowingly 
6

The Estate contends that it discovered the facts relevant to 

this appeal through the Sweeney Complaint.

The Estate filed a first amended complaint 

(hereinafter, “the amended complaint”) on December 12, 

2012, which asserts 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, 

thus proximately causing his death. 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 prohibition 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 relationship 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 “advising 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 the District 

Court granted the motion on March 22, 2013. Mordaga then 

filed a motion to dismiss, which the District 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 12(b)(1), see Common Cause of Pa. v. Pa., 558 F.3d 

249, 257 (3d Cir. 2009), as well as Rule 12(b)(6), see Wiest v. 

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

III.

The District 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 under 
8

these provisions. In its June 19, 2013 opinion, the District 

Court concluded that Mordaga is not a “person” subject to 

suit under the federal civil rights laws. Because the District 

Court erred in reaching these conclusions, 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 jurisdiction 

thereof to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws.” 42 U.S.C. 

§ 1983 (emphasis added). Section 1985 imposes liability “if 

two or more persons” conspire to interfere with civil rights in 

a manner 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 

should 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, 491 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 “persons” under §§ 1983 and 1985, and state agencies and 

their officials acting in their official capacity are not, we must 

decide 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]bviously, 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 functions, 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 Mordaga 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 performing the classic 

functions of law enforcement or criminal investigators.

For instance, the amended complaint alleged that 

Lagano and Mordaga “enjoyed a personal and business 
11

relationship,” (App. 29a ¶ 11), which included “vacation[ing], 

visit[ing,] . . . socializ[ing,]” and “multiple business 

ventures.” (Id. ¶ 12, 14.) The amended complaint also 

alleged that Mordaga met with Lagano after Lagano’s home 

was searched, provided him with the name of a specific 

attorney, and assured Lagano that, if he retained this attorney, 

“90% of [his] problems would go away.” (Id. 30a ¶ 20.) 

After Lagano failed to retain the recommended attorney, the 

amended complaint averred that Mordaga attended a “dinner 

meeting,” during which Mordaga advised Lagano that “half 

his money would 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] personnel 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 Lagano extended beyond Mordaga’s official 

role as BCPO Chief of Detectives during the BCPO 

investigation of Lagano. It can also reasonably be inferred 

from the allegations that Mordaga was not performing classic 

investigatory and prosecutorial functions when he urged 

Lagano to retain a specific 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 

unrelated to any lawful investigative or prosecutorial 
12

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 alleged that the BCPO and Mordaga 

acted exclusively in classic law enforcement and investigative 

functions so as to make them part of the State 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, the dismissal as to Mordaga was 

incorrect for an additional reason. Mordaga is sued not only 

in his official capacity, but also in his personal capacity. (See 

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 explicitly 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 sufficiently 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 the 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 incorporated 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. No. 07-5561 

(DMC), 2008 WL 4126181, at *7–8 (D.N.J. Sept. 4, 2008), 

rev’d in part, 366 F. App’x 357 (3d Cir. 2010). Because the 

District Court erred in concluding at this stage that neither the 

BCPO nor Mordaga were “persons” amenable to suit under 

§§ 1983 and 1985, it likewise 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 parties 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 individual 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 other 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 the 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 

immunity. 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, 659 (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 subdivisions 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 interest, 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 applying 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 District 
16

Court’s reading of Coleman is erroneous. First, 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 purpose 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 with 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 

certainly, 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 “essentially 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, we are not bound or 

persuaded by Beightler’s statement that the Fitchik inquiry is 

satisfied whenever a county prosecutor engages in classic 

prosecutorial functions. We therefore conclude that Fitchik 

provides the proper framework for analyzing Eleventh 

Amendment sovereign immunity as it applies to county 

prosecutors, and on remand the District Court must apply 
17

Fitchik to determine whether the BCPO is entitled to Eleventh 

Amendment sovereign immunity in this case.

8

C. Qualified Immunity

We turn now 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-pronged 

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 is grounded in the Due Process 

Clause 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. XIV, § 

 

8 Of course, the fact that we have held that the 

amended complaint 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 analytically 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]ndividuals 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 

protect its citizens. DeShaney v. Winnebago 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 establish 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 between 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 or 
19

that rendered the citizen more 

vulnerable to danger than had the 

state not acted at all.

Bright v. Westmoreland Cnty., 443 F.3d 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 statecreated 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 constitutional 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 violated 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 Circuit[,] . . . 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 cannot 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 danger 
20

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 previously 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 

allegations 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 under 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, 

because 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

The District Court 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 limitations for a 

claim arising 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, personal 

injury claims are governed by a two-year statute of 

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

9

 Consequently, the 

statute of limitations for Count 3, which asserts a violation of 

the Fourth Amendment’s prohibition against unreasonable 

searches and seizures 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 and 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 the 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 limitations 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, the search of Lagano’s home took place on 

December 1, 2004. On January 13, 2005, the 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. Lagano filed an answer to the 

forfeiture action in 2005, and the Estate was substituted in 

Lagano’s place following his death in 2007. Without 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 seizure matters.” (App. 16a.)
23

The 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 

forfeiture action in 2005, the Estate still argues that the 

answer “merely acknowledges Lagano’s awareness of the 

search and seizure, not the illegality of it,” and that the 

answer therefore did not put the Estate on notice that 

Lagano’s rights were violated. (Appellant’s Br. 45.) Thus, 

according 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 representative 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] claimed 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 added).)
24

2012. Under this theory, the Estate’s August 2012 complaint 

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 the allegedly 

unlawful 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, the two-year period of 

limitations expired in March 2007, before Lagano’s death the 

following month. We therefore 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 

complaint 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 245 (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 proceedings consistent with this opinion.