*NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JAMES BAKER, :

: Civil Action No. 11-360 (SDW)

Plaintiff, :

:

v. : OPINION

:

CITY OF ELIZABETH, et al., :

: July 8, 2015

Defendants. :

:

WIGENTON, District Judge:

Presently before the Court is Defendants’ motion to dismiss Plaintiff’s complaint. (ECF 

No. 54). Plaintiff, James Baker, filed a brief in opposition (ECF No. 55), to which Defendants 

replied. (ECF No. 56). Plaintiff thereafter filed a response to Defendants’ reply. (ECF No. 57, 

58). For the following reasons, this Court will deny Defendants’ motion to dismiss as to 

Plaintiff’s illegal search and excessive force claims, but will grant the motion as to Plaintiff’s 

malicious prosecution claim, which will be dismissed without prejudice.

I. BACKGROUND

The following allegations are drawn from Plaintiff’s “Second Amended Complaint” (ECF 

No. 39), and are accepted as true for the purposes of this opinion only. On October 2, 2009, 

Plaintiff, after dropping off several associates in Elizabeth, New Jersey, drove another associate, 

Mr. Knowles, towards Newark, New Jersey via highways 1 & 9. (ECF No. 39 at 1). While 

waiting at a red light on the highway, a police vehicle pulled out of a gas station into the lane 

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behind Plaintiff’s car. (Id.). Several more marked and unmarked police vehicles swiftly joined 

the police car, and Plaintiff and Knowles were removed from Plaintiff’s vehicle. (Id.). Plaintiff 

was arrested and charged with reckless driving and possession of heroin. (Id.). After he was 

released on bail, Plaintiff was additionally charged with eluding the police and possession of a bag 

of heroin which police claim was discovered alongside a watch and $ 468.00 on the passenger side 

floor of Plaintiff’s car. (Id.). Plaintiff maintains that the police’s assertion that the heroin was 

found in his car is false. (Id.). Those charges proceeded to trial, and Plaintiff was apparently 

found not guilty of heroin possession but was convicted of eluding the police. (Id.).

Following Plaintiff’s arrest on October 2, 2009, Officer Paul Pasternak of the Elizabeth 

police had Plaintiff’s car impounded. (Id. at 2). Plaintiff’s vehicle was held until January 14, 

2010, when Plaintiff paid $ 3,011 for the vehicle’s return. (Id.). Plaintiff alleges that Officer 

Pasternak had the vehicle illegally wiretapped while it was impounded as a means to spy on 

Plaintiff. (Id.).

Plaintiff further alleges that at 8:00 a.m. on November 12, 2009, he picked up a friend, Ms. 

Torrado, and her daughter from his mother’s home and brought them to a hospital on Broad Street 

in Elizabeth, New Jersey. (Id.). While driving Torrado and her daughter, Plaintiff noticed that 

he was being followed by a black SUV. (Id.). This SUV continued to follow Plaintiff after he 

dropped his passengers off at the hospital. (Id.). Plaintiff alleges that he then pulled over to the 

road side and exited his vehicle at which point the SUV “came at [him] full speed as if to hit

[Plaintiff].” (Id. at 2-3). Plaintiff alleges that he therefore “jump[ed] back into his vehicle and 

[drove away in] fear of being attacked.” (Id. at 3). Plaintiff further states that the vehicle, which 

apparently was a police SUV which then contained Defendants Officers McDonough, Diorio, and 

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Flatley, rammed into the rear of his vehicle without reason and attempted to run him off the road 

without turning on police lights or otherwise identifying itself as a police vehicle. (Id.). Plaintiff 

asserts that the officers continued to ram into his vehicle as he traveled through residential areas 

and onto the highway until they succeeded in running him off the road in Linden, New Jersey, 

where Plaintiff crashed into two parked cars and a pole. (Id.). Plaintiff alleges that the officers 

did this “deliberately, intentionally and maliciously [in an attempt to] kill . . . or seriously injure 

[him] with . . . unlawful excessive force.” (Id.). Plaintiff also claims that, as a result of the 

accident, he suffered injuries to his legs, neck, and back. (Id.). 

Following the accident, Plaintiff was arrested and charged with eluding the police. (Id.). 

Plaintiff alleges that, in his police report, Officer McDonough “fabricated [his account] of Officer 

Diorio coming to [P]laintiff’s car window [and] seeing a bundle of heroin that [Plaintiff] was about 

to hand to [an alleged buyer].” (Id.). Plaintiff further contends that Officer McDonough also 

fabricated his claim that Plaintiff threw the drugs out of his car while on the highway. (Id.). 

Plaintiff further alleges that since these events, he, his friends, and alleged witnesses in support of 

his criminal defense for eluding arrest have been harassed, threatened, and assaulted as part of an 

organized campaign against Plaintiff because he owns and drives a Cadillac Escalade. (Id. at 3-

4). 

Plaintiff initially filed a complaint in this matter in January of 2011. (ECF No. 1). In 

early February 2011, Plaintiff filed an amended complaint. (ECF No. 2, 3). This Court denied 

Plaintiff’s application to proceed in forma pauperis and administratively terminated Plaintiff’s 

complaint on July 27, 2011, for failure to pay the required filing fee. (ECF No. 9). Although 

Plaintiff was given 30 days to pay the fee or refile his application, he took neither option, instead 

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requesting an extension of time to pay the fee on August 19, 2011. (ECF No. 11). Plaintiff 

finally paid the fee on February 13, 2013. (ECF No. 14). 

On March 1, 2013, Plaintiff filed a new amended complaint raising approximately twenty 

claims. (ECF No. 15). Following a motion to dismiss certain claims by Plaintiff, this Court 

screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. (ECF No. 24, 25). Following 

screening, this Court dismissed all but four of Plaintiff’s claims on September 20, 2013. (ECF 

No. 25). 

Plaintiff once again filed an amended complaint on August 22, 2014, reasserting both the 

four surviving claims and several of the claims this Court had previously dismissed. (ECF No. 

36). On September 3, 2014, then Magistrate Judge Arleo ordered that the previously dismissed 

claims again be dismissed and instructed Plaintiff to refile his amended complaint in accordance 

with her order. (ECF No. 37). Plaintiff thereafter filed his “Second Amended Complaint” on 

September 26, 2014, asserting four claims pursuant to 42 U.S.C. § 1983: that Defendant Officer 

Turner planted heroin in his car during the October 2, 2009, incident; that Defendant Pasternak 

illegally searched and seized his vehicle by illegally wiretapping Plaintiff’s car while it was 

impounded; that Defendants McDonough, Flatley, and Diorio used excessive force in running 

Plaintiff off the road during the November 12, 2009, incident; and that Officers Mikros, 

McDonough, and Smith harassed and intimidated Ms. Torrado to prevent her from testifying in 

his defense. (ECF No. 39 at 5-6). Following a telephone conference in which Plaintiff abjured 

his claims against Mikros and Smith on the record, this Court dismissed those two Defendants on 

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January 14, 2015. 1 (ECF No. 52, 53). Defendants thereafter moved to dismiss Plaintiff’s 

complaint on February 6, 2015. (ECF No. 54).

II. DISCUSSION

A. Legal Standard

 In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual 

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine 

whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” 

Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Phillips v. 

Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). According to the Supreme Court’s 

decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic 

recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss for 

failure to state a claim, a complaint must allege “sufficient factual matter” to show that its claims 

are facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation 

omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings 

 

1 Although counsel for Defendants asserts that this Court’s order dismissed Plaintiff’s fourth 

claim (as numbered in the “Second Amended Complaint, ECF No. 39 at 6) in its entirety, the 

order dismissed that claim formally only as to Defendants Mikros and Smith. The status of that 

claim as to Defendant McDonough is not entirely clear at this time, but because Defendants have 

not moved to dismiss the claim as to Officer McDonough, this Court does not address the issue 

further in this Opinion.

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are liberally construed, “pro se litigants still must allege sufficient facts in their complaints to 

support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation 

omitted) (emphasis added).

B. Analysis

42 U.S.C. § 1983 provides “private citizens with a means to redress violations of federal 

law committed by state individuals.” Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 180 (3d 

Cir. 2013). To assert a claim under the statute, Plaintiff must show that he was deprived of a 

federal constitutional or statutory right by a state actor. Id. When evaluating the merits of a § 

1983 claim, courts must “identify the exact contours of the underlying right said to have been 

violated” and determine “whether the plaintiff has alleged a deprivation of a constitutional right at 

all.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting Cnty. of Sacramento v. Lewis, 

523 U.S. 833, 841 n. 5 (1998)). Three of Plaintiff’s claims are at issue here: Plaintiff’s claim 

that evidence was planted in his car following the October 2, 2009 incident; Plaintiff’s assertion 

that his car was illegally wiretapped in violation of Plaintiff’s Fourth and Fourteenth Amendment 

rights; and Plaintiff’s claim that three of the Defendants used excessive force in violation of his 

Fourth and Fourteenth Amendment rights in running his car off the road during the November 12, 

2009, incident. This Court will address each of these claims in turn.

1. Plaintiff’s claim that Officer Turner planted heroin in his vehicle following the October 

2, 2009, incident

Defendants first seek dismissal of Plaintiff’s planted evidence claim against Officer Turner. 

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In their motion, Defendants argue that this claim must be dismissed as the heroin possession charge 

was presented to a grand jury and ultimately resulted in Plaintiff’s indictment, though not his 

conviction for possession of heroin. Essentially, Plaintiff seeks to bring a claim for malicious 

prosecution against Officer Turner.2 A claim for malicious prosecution under § 1983 arises out 

of the protections of the Fourth Amendment. Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 

2014). A plaintiff states a claim for malicious prosecution where he alleges that 

(1) the defendant initiated a criminal proceeding; (2) the criminal 

proceeding ended in [the plaintiff’s] favor; (3) the defendant 

initiated the proceeding without probable cause; (4) the defendant 

acted maliciously or for a purpose other than bringing the plaintiff 

to justice; and (5) the plaintiff suffered [a] deprivation of liberty 

consistent with the concept of seizure as a consequence of a legal 

proceeding.

Id. 

Defendants argue that Plaintiff’s claim must be dismissed against Officer Turner because 

the prosecutor and grand jury both found the evidence against Plaintiff to be sufficient to proceed 

against him on the heroin possession charge. This argument, however, is misguided. “It is 

settled law that ‘officers who conceal and misrepresent material facts to the district attorney are 

not insulated from a § 1983 claim for malicious prosecution simply because the prosecutor, grand 

jury, trial court, and appellate court all act independently to facilitate erroneous convictions.” Id.

at 297 (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1292 (3d Cir. 2004)). So long as the officers 

in question “influenced or participated in the decision to institute criminal proceedings, they can 

 

2 This Court recognizes that the fabrication of evidence can give rise to a stand-alone claim 

separate and apart from malicious prosecution under certain circumstances, see Halsey, 750 F.3d 

at 291-95. Those circumstances are absent, however, where, as here, the plaintiff was acquitted 

of the charge arising out of the allegedly fabricated or planted evidence. Id.

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be liable for malicious prosecution.” Id. Here, Plaintiff asserts that the heroin possession charge 

was entirely the result of the allegedly planted heroin evidence placed in his vehicle by Officer 

Turner who ultimately misrepresented the source of the heroin in his reports to the prosecutor. 

Thus, Plaintiff has adequately pled that Officer Turner at least influenced the decision to institute 

criminal proceedings through his alleged misrepresentations. So long as Plaintiff has pled the 

remaining elements, then, Turner could plausibly be found liable for malicious prosecution, 

regardless of what conclusions the prosecutor or grand jury reached in this case. Id.

Liberally construing his pro se pleadings, Plaintiff has plausibly pled the first four elements 

of a malicious prosecution claim: that Officer Turner at least influenced his being charged with 

possession of heroin, that the matter terminated in his favor as he was acquitted of possession,3

that Turner lacked probable cause to suspect Plaintiff possessed heroin in so much as he allegedly 

provided the heroin “planted” in Plaintiff’s vehicle, and that Turner acted maliciously in planting 

the evidence in the hopes of convicting Plaintiff of crimes beyond eluding the police. As such, 

whether Plaintiff has pled a plausible claim for relief depends on whether he has adequately pled 

the final element of a malicious prosecution claim: that he suffered a sufficient deprivation of 

liberty as a result of Turner’s actions. Although Plaintiff states that he was taken into custody and 

eventually released on bail, he was arrested not only on the drug related charge, but also on the

 

3 This Court recognizes that, where the charges arise out of the same occurrence, a conviction on 

one charge can prevent a plaintiff from claiming that he achieved a favorable termination as to 

another charge of which he was acquitted. See Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 

2009). As pled, however, the possession of heroin charge which Plaintiff claims was 

maliciously brought stems from conduct separate from his act of eluding the police, and it 

therefore appears that Plaintiff’s eluding conviction would not necessarily prevent a favorable 

termination as to the heroin charge.

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eluding charge. Thus, without more information, it appears that Plaintiff would have been 

arrested, and thus suffered the alleged deprivation of liberty, regardless of the fabricated charge. 

As such, Plaintiff has not adequately pled the final element of a malicious prosecution claim, and 

that claim must therefore be dismissed at this time. See, e.g., Johnston v. Ontorato, Civil Action 

No. 09-1681, 2010 WL 936732 (W.D. Pa. Mar. 11, 2010) (plaintiff jailed on other additional 

charges has not suffered an adequate deprivation of liberty as he would have been in jail regardless 

of the maliciously brought charge); see also Kundratic v. Thomas, 407 F. App’x 625, 629 (3d Cir. 

2011) (rejecting argument that a deprivation of liberty suffered due to multiple charges can be 

readily be attributed to one specific charge for which the plaintiff seeks relief under § 1983);

Shelley v. Wilson, 152 F. App’x 126, 129 (3d Cir. 2005) (suggesting that where a plaintiff’s alleged 

deprivation would have occurred because of other charges of which the plaintiff was found guilty, 

no deprivation occurs sufficient to support a malicious prosecution charge). Plaintiff’s malicious 

prosecution charge will therefore be dismissed without prejudice.4

2. Plaintiff’s Illegal Search claim

Defendants next seek the dismissal of Plaintiff’s illegal wiretap claim against Officer 

Pasternak. Defendants assert that Plaintiff has failed to adequately plead anything more than 

unadorned legal conclusions as to this claim, and that it therefore fails to meet the requirements of 

 

4 Defendants do not specifically argue that the claim should be dismissed for lack of a 

deprivation, instead arguing more generally that Plaintiff has not pled a plausible claim. To the 

extent that this Court’s focus on the deprivation element is more specific than the arguments 

raised, this Court is authorized to dismiss this claim under its sua sponte screening authority 

pursuant to 28 U.S.C. § 1915A.

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Iqbal. The Fourth Amendment, applicable to the states through the Fourteenth Amendment, 

protects “the rights of the people to be secure in their persons, houses, papers, and effects, against 

unreasoanble searches and seizures.” See U.S. CONST. amend IV; see also Mapp v. Ohio, 367 

U.S. 643 (1961). Under the Fourth Amendment, a search occurs whenever “an expectation of 

privacy that society is prepared to consider reasonable is infringed.” Moore v. Dow, Civil Action 

No. 11-281, 2011 WL 2182115, at *7 (D.N.J. June 2, 2011) (quoting United States v. Jacobsen, 

466 U.S. 109, 113 (1984)). Under the Fourth Amendment, a search is “per se unreasonable” 

unless it is conducted under the auspices of a warrant issued upon probable cause absent a specific 

exception otherwise authorizing the search. Id.; see also Schneckloth v. Bustamonte, 412 U.S. 

218, 219 (1973). A plaintiff therefore states a claim for relief under the Fourth Amendment and 

§ 1983 where he adequately pleads that a state actor performed a search of his person, home, or 

possessions without a warrant or probable cause. See Castro v. Perth Amboy Pol. Dep’t, Civil 

Action No. 13-3376, 2014 WL 2299301, at *2 (D.N.J. Jan. 21, 2014) (citing Reedy v. Evanson, 

615 F.3d 197 (3d Cir. 2010)).

In his complaint, Plaintiff alleges that Officer Pasternak, without authorization or a warrant, 

illegally wiretapped his car while it sat in the police impound lot. Plaintiff further suggests that 

this was done in order to monitor and harass him. Plaintiff has therefore pled that he was subject 

to a search, in so much as Pasternak wiretapped his vehicle and used that tap to observe Plaintiff, 

and that the officer did so without authorization. Although Plaintiff’s complaint does not 

specifically state that the officer acted without a warrant or without probable cause, Plaintiff does 

plead that the wiretap was illegal, and that the officer performed this action in order to deprive 

Plaintiff of his rights. Construing the pro se complaint liberally, see Mala, 704 F.3d at 245, this 

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Court finds that Plaintiff has sufficiently pled a plausible claim for the violation of his Fourth 

Amendment rights. Castro, 2014 WL 2299301 at *2; Iqbal, 556 U.S. at 678. This Court will 

therefore deny Defendants’ motion to dismiss as to Plaintiff’s illegal search claim at this time.

3. Plaintiff’s Excessive Force claim

Finally, Defendants argue that this Court should dismiss Plaintiff’s Excessive Force claim 

in light of his conviction for eluding the police following the November 12, 2009, incident. 

Where a judgment in favor of the plaintiff in a civil suit brought pursuant to § 1983 “would 

necessarily imply the invalidity of a prior criminal conviction, the complaint must be dismissed 

unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” 

Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir. 2008); see also Heck v. Humphrey, 512 U.S. 477, 

484-87 (1994). An excessive force claim, however, does not by its very nature necessarily attack 

the arrest or conviction of a prisoner as such a claim does not require that the use of force itself 

was unlawful, only that the amount of force used to effectuate a prisoner’s arrest exceeded the 

amount reasonably necessary under the circumstances. Lora-Pena, 529 F.3d at 506; see also 

Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997). The Third Circuit has, on multiple 

occasions, held that even the validity of a conviction for resisting arrest is not necessarily 

implicated by an excessive force claim arising out of the same incident. Lora-Pena, 529 F.3d at 

506; Nelson, 109 F.3d at 145-46; see also Garrison v. Porch, 376 F. App’x 274, 277-78 (3d Cir. 

2010). The question, then, is whether Plaintiff’s current allegations of excessive force would 

necessarily impugn his conviction for eluding the police, or if, as in Lora-Pena, Plaintiff’s claim 

only asserts that officers exceeded the level of force that was reasonably necessary to effect 

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Plaintiff’s arrest under the circumstances.

Plaintiff asserts that the officers used excessive force in running him off the road. The use 

of force by a police officer in the context of an arrest is governed by the Fourth Amendment. 

Suarez v. City of Bayonne, 556 F. App’x 181, 186 (3d Cir. 2014). The use of force to effectuate 

a seizure of a plaintiff or the plaintiff’s arrest “‘contravenes the Fourth Amendment if it is 

excessive under objective standards of reasonableness.’” Id. (quoting Bennett v. Murphy, 274 

F.3d 133, 136 (3d Cir. 2002)). The use of force is not actionable where the actions of the police 

officers are objectively reasonable in light of the facts and circumstances confronting the officers 

when viewed from the perspective of a reasonable officer at the scene facing those circumstances. 

See Lamont v. New Jersey, 637 F.3d 177 (3d Cir. 2011); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 

2004); Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004). Plaintiff states a claim for 

excessive force if he can show that the officers used an amount of force that was unreasonable 

under the circumstances, even if some lesser amount of force would have been perfectly reasonable 

under the circumstances. Thus, Plaintiff’s claim would be Heck barred only if a finding that the 

amount of force used was reasonable was a necessary part of his conviction.

Plaintiff was convicted of second degree eluding a police officer in violation of N.J. Stat. 

Ann. § 2C:29-2(b). Pursuant to the statute, any person who, “while operating a motor vehicle on 

any street or highway in [New Jersey,] . . . knowingly flees or attempts to elude any police or law 

enforcement officer after having received any signal from such officer to bring the vehicle . . . to 

a full stop . . . is guilty of a crime of the second degree if the flight or attempt to elude creates a 

risk of death or injury to any person.” N.J. Stat. Ann. § 2C:29-2(b). A defendant is therefore 

guilty of second degree eluding under New Jersey law where he (1) knowingly flees or attempts 

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to elude the police while driving on a street or highway, (2) after having received a signal from the 

police officer indicating he should stop, and (3) his flight “creates a risk of death or [physical] 

injury to any person.” See State v. Thomas, 900 A.2d 797, 808 (N.J. 2006). There is no 

requirement that the defendant knowingly create the risk of death or injury, it is sufficient that the 

risk, however unintended it may have been, resulted from his flight. Id. No element of the crime 

requires a showing that the officers who stop such a defendant use reasonable force. As such, a 

victory for Plaintiff on his excessive force claim would not necessarily imply the invalidity of his 

conviction for eluding police, and as such his claim is not barred by the Heck doctrine. LoraPena, 529 F.3d at 506; Nelson, 109 F.3d at 145-46. This Court will therefore deny Defendants’ 

motion as to this claim.5

 

5 This Court notes, however, that the statements made by Plaintiff during his plea colloquy, 

although beyond the scope of this motion to dismiss, see Guidotti v. Legal Helpers Debt 

Resolution, LLC, 716 F.3d 764, 772 (3d Cir. 2013) (courts deciding motions to dismiss “consider 

only the complaint, exhibits attached to the complaint, matters of public record, as well as 

undisputedly authentic documents if the complainant’s claims are based on these documents.”); 

Marshall v. Keansburg Borough, Civil Action No. 13-0533, 2013 WL 6095475, at *1 n.1 (D.N.J. 

Nov. 20, 2013) (convictions are considered public records, but perusal of plea colloquies would 

require conversion of a motion to dismiss into one for summary judgment), would present strong 

evidence that the force used was justified and reasonable at summary judgment or trial. See 

Scott v. Harris, 550 U.S. 372, 386 (2007) (a “police officer’s attempt to terminate a dangerous 

high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth 

Amendment, even when it places the fleeing motorist at risk of serious injury or death”). 

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III. CONCLUSION

For the reasons stated above, this Court will deny Defendants’ motion to dismiss as to 

Plaintiff’s illegal search and excessive force claims, but will grant the motion as to Plaintiff’s 

malicious prosecution claim. An appropriate order follows. 

s/ Susan D. Wigenton

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

Orig: Clerk

cc: Magistrate Judge Steven C. Mannion

Parties

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