14230-00116-MJB

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

By: Matthew J. Behr, Esquire 

200 Lake Drive East, Suite 300, Cherry Hill, NJ 08002

Attorney for Defendant, Camden County Prosecutor's Office

IN THE UNITED SATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Camden Vicinage)

IN RE CAMDEN POLICE CASES

_______________________________

ALANDA FORREST

Plaintiff,

vs.

CITY OF CAMDEN; CITY OF CAMDEN 

POLICE DEPARTMENT; CAMDEN 

COUNTY; CAMDEN COUNTY 

PROSECUTOR'S OFFICE; STATE OF 

NEW JERSEY OFFICE OF THE 

ATTORNEY GENERAL; POLICE 

OFFICER KEVIN PARRY; POLICE 

OFFICER ROBERT BAYARD; POLICE 

OFFICER ANTONIO FIGUEROA; 

POLICE OFFICER JASON STETSER; 

POLICE OFFICER DANIEL MORRIS; 

JOHN DOES (1-10), all 

individually and in their 

official capacities as police 

officers,

Defendants.

MASTER DOCKET NO. 11-CV-1315 

(RBK/JS)

________________________________

C.A. NO: 09:cv-1555-RBK-JS

BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT,

WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM

On the Brief: Matthew J. Behr, Esquire

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Table of Contents

Page

I. INTRODUCTION.............................................. 1

II. FACTUAL AND PROCEDURAL BACKGROUND......................... 2

III. LEGAL ARGUMENTS........................................... 3

A. STANDARD OF REVIEW........................................ 3

B. THE DEFENDANT IS ENTITLED TO SOVEREIGN IMMUNITY........... 6

C. DEFENDANT IS NOT PERSONS WITHIN THE MEANING OF 42 U.S.C. § 

1983 ................................................... 11

D. THE DEFENDANT IS ENTITLED TO PROSECUTORIAL IMMUNITY...... 13

IV. CONCLUSION............................................... 16

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TABLE OF AUTHORITIES

FEDERAL CASES 

No table of authorities entries found.No table of 

authorities entries found.No table of authorities 

entries found.No table of authorities entries 

found.No table of authorities entries found.No table 

of authorities entries found.

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I. INTRODUCTION

Plaintiff Alanda Forrest alleges that the Camden Prosecutor 

Warren Faulk (hereinafter referred to as (“the Prosecutor”) 

violated his civil rights pursuant to 42 U.S.C. § 1983. Count X 

of the Fourth Amended Complaint sets forth a claim for 

unconstitutional official policy and failure to supervise and 

train against defendant, Warren Faulk. In particular, paragraph 

62 alleges that failure to supervise, train, discipline sets 

unconstitutional customs, practices and/or policies, amounting 

to gross negligence, deliberate or intentional misconduct and 

were the moving force behind plaintiff's arrest, prosecution and 

incarceration and approximately and directly caused the injuries 

and damage as set forth above. As a result, this Motion to 

Dismiss assumes that plaintiff's cause of action is solely 

premised upon 42 U.S.C. § 1983.

First, all claims against must be dismissed because the 

Prosecutor is an arm of the State of New Jersey and thus all 

claims are barred by the Eleventh Amendment. Second, because 

the Prosecutor himself is not a “person” within the meaning of 

the statute plaintiff does not have a viable claim. Third, the 

Prosecutor himself enjoys prosecutorial immunity for all of his 

alleged actions and thus defendant’s motion to dismiss must be 

granted. 

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Based on all of the following reasons, plaintiff Forrest's 

Complaint must be dismissed in its entirety as to this moving 

Defendant, the Prosecutor.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Forrest was arrested on July 1, 2008 in Camden, 

New Jersey and charged with drug offenses. See Exhibit “A”, 

Plaintiff’s Fourth Amended Complaint. Plaintiff also alleges that 

the officers knocked plaintiff down to the floor and continued 

to beat her until she passed out. See Exhibit “A”. Plaintiff 

was convicted and sentenced to jail for three years and served 

time in jail from July 1, 2008 to January 6, 2010, when the 

plaintiff was released and the conviction vacated. See Exhibit 

“A”. 

On or about January 3, 2011, plaintiff filed the first 

Amended Complaint alleging violations of his civil rights 

pursuant to 42 U.S.C. § 1983 as well as violations of the New 

Jersey State Constitution. The Court held a case management 

conference on November 15, 2010 relating to a number of cases 

similar to this one in which plaintiffs allege violations of 

civil rights stemming from their arrests and subsequent 

dismissals of their cases. At that time, Judge Schneider issued 

an order that all defendants served must file responsive 

pleadings no later than January 14, 2011. The 

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Prosecutor/Prosecutor's Office moved to dismiss those complaints 

with which they had been served and which assignment was given 

to this law firm. Motions to Dismiss were filed pursuant to Fed. 

R. Civ. P 12(b)(1) and 12(b)(6).

Plaintiff filed her Fourth Amended Complaint and Jury 

Demand on or about January 5, 2011. On May 12, 2011, this Law 

Firm received the assignment to represent the Prosecutor in 

regard to the above entitled matter.

This Defendant now moves to dismiss Plaintiff's Complaint 

with prejudice pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6).

III. LEGAL ARGUMENTS

A. STANDARD OF REVIEW

Defendant respectfully submits that this matter should be 

dismissed as this court lacks subject matter jurisdiction.

Pursuant to Fed. R. Civ. P. 12(b) (1), the defense of lack of 

subject matter jurisdiction may be made by motion. Accordingly, 

'[w]henever it appears by suggestion of the parties or otherwise 

that the court lacks jurisdiction of the subject matter, the 

court shall dismiss the action.' Fed. R. Civ. P. 12(h) (3).

When presented with a motion to dismiss under Rule 12(b) (1), "a 

court must determine if it has the subject matter jurisdiction -

i.e., the authority - to consider the attacked claim." Tobin v. 

United States, 170 F. Supp. 2d 472, 475 (D.N.J. 2001) (citations 

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omitted). Whenever jurisdiction is challenged, the burden of 

proof rests on the party asserting that jurisdiction exists.

Id. at 476.

In reviewing whether a substantial federal claim has been 

asserted, 'the court may consider and weigh evidence outside the 

pleadings to determine if it has jurisdiction.' Mortenson v. 

First Fed. Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 

1977). In addition, as noted by the Third Circuit Court of 

Appeals in Gould Electronics, Inc. v. United States, 220 F.3d 

169 (3d Cir. 2000), a motion to dismiss for lack of subject 

matter jurisdiction predicated on the legal insufficiency of a 

claim may be granted if the claim 'clearly appears to be 

immaterial and made solely for the purpose of obtaining 

jurisdiction or is wholly insubstantial and frivolous.' Id. at 

178 (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.3d 

1406, 1409 (3d Cir. 1991)).

Additionally, Federal Rule of Civil Procedure 12 (b) (6) 

permits a court to dismiss all or part of an action for failure 

to state a claim upon which relief can be granted. In ruling on 

a 12 (b)(6) motion, the court must accept as true all well 

pleaded factual allegations, and must draw all reasonable 

inferences in favor of the plaintiff. Doe v. Delie, 257 F. 3d 

309, 313 (3d Cir. 2001). Thus, a court may grant the motion 

"only if it is clear that no relief could be granted under any 

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set of facts that could be proved consistent with the 

allegations." Id. However, the court "need not credit the nonmovant's conclusions of law or unreasonable factual inferences." 

Curay-Cramer v. The Ursuline Academy of Wilmington, Delaware, 

Inc., 450 F.3d 130 (3d Cir. 2006) (citations omitted). Thus, 

claims should be dismissed under Rule 12 (b) (6) when "it 

appears beyond doubt that the Plaintiff can prove no set of 

facts in support of her claim which would entitle her to 

relief." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

There are two working principles underlying the motion to 

dismiss standard. First, “the tenet that a court must accept as 

true all of the allegations contained in a complaint is 

inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. 

Ct. 1937 (2009). Instead, the legal conclusions “must be 

supported by factual allegations” in order to be “entitled to 

the assumption of truth.” Id. at 1950. 

Second, “only a complaint that states a plausible claim for 

relief survives a motion to dismiss.” Id. See also Bell 

Atlantic Corp. v. Twombly, 550 U. S. 544, 570 (2007). Whether a 

complaint states a plausible claim for relief is a “contextspecific task that requires the reviewing court to draw on its 

judicial experience and common sense. Id. A claim is plausible 

on its fact when the plaintiff “pleads factual content that 

allows the court to draw the reasonable inference that the 

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defendant is liable for the misconduct alleged.” Id. at 1949 

(citing Twombly, 550 U.S. at 556). This standard is not a 

probability requirement, but it “asks for more than a sheer 

possibility that defendant has acted unlawfully. Id. When the 

“well-pleaded facts do not permit the court to infer more than 

the mere possibility of misconduct, the complaint has allegedbut it has not shown-that the pleading is entitled to relief.” 

Id. 

The Court of Appeals for the Third Circuit has held, in the 

context of such as the instant 42 U.S.C. § 1983 civil rights 

action, that the Twombly pleading standard applies. See

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 

2008). 

B. THE DEFENDANT IS ENTITLED TO SOVEREIGN IMMUNITY 

The Eleventh Amendment to the U.S. Constitution prohibits 

federal jurisdiction over lawsuits brought by individuals 

against a State, unless the State has consented to such 

jurisdiction. See U.S. Const. amend. XI; See also College 

Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 

527 U.S. 666, 669 (1999). The Eleventh Amendment states: 

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 

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of another State, or by Citizens or Subjects 

of any Foreign State. 

Id. The State of New Jersey has never waived its sovereign 

immunity in the federal courts. In fact, the passage of the New 

Jersey Tort Claims Act by the legislature only re-established 

the State's sovereign immunity. See N.J. Stat Ann. §§ 59:1-1 to 

59:12-3. Accordingly, the Eleventh Amendment acts as a 

jurisdictional bar to the federal courts regarding claims 

against the State. College Sav. Bank, 527 U.S. at 669; Seminole 

Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) (The 

"presupposition" is that each state is a sovereign entity in the 

federal system, and that a state is not subject to suit in 

federal court by an individual without its consent). 

Additionally, the type of relief sought by a plaintiff is 

irrelevant to the question of whether the suit is barred by the 

Eleventh Amendment. A suit against the State or State officials 

is barred if the decree would operate against the sovereign. 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 

(1984). The Supreme Court in Pennhurst held that a suit is 

against the State if the judgment would be paid out of the state 

treasury or would interfere with government administration. Id.

at 102. Likewise, if the judgment operates to compel the state 

to act or to restrain it from acting, the suit is against the 

sovereign. Id.

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Not only does the Eleventh Amendment generally prohibit 

federal courts from hearing suits brought by private citizens 

against a State government without that State's consent, but the 

State's immunity extends to the State's agencies and State 

officers who act on behalf of the State as well. Natural 

Resources Defense Council v. California Dept. of Transp., 96 

F.3d 420 (9th Cir. 1996). 

In this Circuit, Courts evaluate the following factors to 

determine whether the government agency is an "alter-ego" or 

"arm of the state" for purposes of the Eleventh Amendment: (1) 

whether payment of a judgment resulting from the suit would come 

from the state treasury; (2) the status of the entity under 

state law; and (3) the agency's degree of autonomy. Fitchik v. 

New Jersey Transit Rail Operations, Inc., 873 F. 2d 655, 659 (3d 

Cir. 1989). 

In Wright v. State, 778 A.2d 443 (N.J. 2001), the New 

Jersey Supreme Court determined that the State of New Jersey is 

financially responsible for claims and liabilities against 

County Prosecutors, their Offices, and their staff, arising out 

of their execution of their law enforcement responsibilities. 

Thus, the Supreme Court concluded that for purposes of the 

Eleventh Amendment, the County Prosecutors office and their 

staff are considered an "alter-ego" or "arm of the state" for 

sovereign immunity purposes. Id. In reaching this conclusion, 

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the Court was guided by the Third Circuit's decision in Coleman 

v. Kaye, 87 F.3d 1491 (3d Cir. 1996), which held that when 

Prosecutors "execute their sworn duties to enforce the law by 

using all the tools lawfully available to them to combat crime, 

they act as agents of the State." Id. at 1499. 

Following the Court's decision in Wright, the Third Circuit 

Courts have consistently and uniformly held that the Eleventh 

Amendment precludes federal suits against County Prosecutors and 

their Offices arising out of their law enforcement functions, 

since the real party in interest in such suits is the State of 

New Jersey. See Beightler v. County of the Essex County 

Prosecutor, 2009 U.S. App. LEXIS 18728 (3d Cir. 2009) (attached 

hereto as Exhibit "B"); Hyatt v. County of Passaic, 2009 U.S. 

App. LEXIS 15737 (3d Cir. July 16, 2009) (attached hereto as 

Exhibit "B"); Nugent v. County of Hunterdon, 2010 U.S. Dist. 

LEXIS 47654 (May 14, 2010)(attached hereto as Exhibit "B")Logan 

v. New Jersey, 2010 U.S. Dist. LEXIS 13479 (D.N.J. Feb. 17, 

2010) (attached hereto as Exhibit "B"); Paez v. Lynch, 2009 U.S. 

Dist. LEXIS 119342 (D.N.J. Dec. 23, 2009) (attached hereto as 

Exhibit "B"); Banda v. Burlington Cty, 2006 U.S. Dist. LEXIS 

68791 (D.N.J. Sept. 26, 2006) ("The Burlington County 

Prosecutor's Office and the individual prosecutors, in their 

official capacities only, are entitled to Eleventh Amendment 

immunity from this suit")(attached hereto as Exhibit "B"); Davis 

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v. Township of Lakewood, 2005 U.S. Dist. LEXIS 16420 (D.N.J. 

Aug. 4, 2005) (holding Ocean County Prosecutor's Office to be an 

alter-ego of the State for Eleventh Amendment purposes)(attached 

hereto as Exhibit "B"); Watkins v. Attorney General of New 

Jersey, 2006 U.S. Dist. LEXIS 73075 (D.N.J. Oct. 4, 2006) 

(holding the Hudson County Prosecutor's Office to be immune from 

suit under the Eleventh Amendment, and also holding it is not a 

"person" within the meaning of Section 1983)(attached hereto as 

Exhibit "B"). 

The State's broad and well established immunity even 

extends to suits brought against the State pursuant to 42 U.S.C. 

§ 1983 and/or 1981. Will v. Michigan Dep't of State Police, 491 

U.S. 58, 64 (1989). Congress may abrogate a state's Eleventh 

Amendment immunity for rights protected under the Fourteenth 

Amendment if there has been "an unequivocal expression of 

congressional intent to overturn the constitutionally guaranteed 

immunity of the several states." Pennhurst, 465 U.S. at 99. 

The United States Supreme Court, however, has specifically held 

that Congress has not abrogated the immunity for actions under 

the Civil Rights Act of 1871, of which 42 U.S.C. §§ 1983 and 

1981 are a part. Quern v. Jordan, 440 U.S. 332, 340 (1979). 

Thus, a federal court does not have jurisdiction to entertain a 

suit brought against the State or the State's agencies and 

officers under either § 1983 or § 1981.

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Plaintiff claims are also based upon the theory of 

respondeat superior. However, in Iqbal, supra, the United 

States Supreme Court reaffirmed the long standing principal that 

Governments and its officials cannot be held liable under a 

theory of respondeat superior. Id. at 1948. Thus, supervisory 

liability as it relates to a civil rights violation under 

federal law is not a viable cause of action. 

In the instant case, the Plaintiff's claims must be 

dismissed with prejudiced, based on the long standing precedent 

demonstrating that the Eleventh Amendment bars such claims 

against this State entity. Accordingly, the Defendant 

respectfully requests that this Court grant the instant Motion 

to Dismiss.

C. DEFENDANT IS NOT PERSONS WITHIN THE MEANING OF 42 

U.S.C. § 1983

State entities are not subject to suit under Section 1983, 

as a State and its officers and/or agents are not a "person" 

within the meaning of the statute. Section 1983 reads, in 

pertinent part: 

Every person who, under color of any 

statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the 

District of Columbia, subjects, or causes to 

be subjected, any citizen of the United 

States or other person within the 

jurisdiction thereof to the deprivation of 

any rights, privileges, or immunities 

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secured by the Constitution and laws, shall 

be liable to the party injured in an action 

at law, suit in equity, or other property 

proceeding for redress. 

In interpreting this Section, the United States Supreme 

Court specifically held that neither a state, a state agency, 

nor state official acting in their official capacity falls 

within the definition of "person" as used in Section 1983. Will 

v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989). 

The Third Circuit Courts have also consistently and 

repeatedly reaffirmed the Supreme Court's ruling in Will, 

finding that State agencies and state officials acting in their 

official capacity are not "persons" within in the meaning of 

Section 1983. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 

690 (3d Cir. 1996); Fisher v. Cahill, 474 F.2d 991, 992 (3d Cir. 

1973) (holding that state agencies may not be sued under Section 

1983 because they are not "persons"); Vasquez v. Ferre, 404 F. 

Supp. 815, 823 (D.N.J. 1975) (citing Monroe v. Pape, 365 U.S. 

167, 191 (1961)) (holding that governmental bodies are not 

"persons" within the meaning of 42 U.S.C. § 1983); Briggs v. 

Moore, 251 Fed. Appx. 77 (3d Cir. 2007) (holding that the 

Monmouth County Prosecutor's Office is not a separate entity 

that can be sued under 1983); McKinney v. Passaic County 

Prosecutor's Office, 2009 U.S. Dist. LEXIS 53216 (D.N.J. June 

24, 2009) (holding that Plaintiff's allegations against the 

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Prosecutor's Office are not cognizable, since the Defendant is 

not a "person" within the meaning of Section 1983)(attached 

hereto as Exhibit "B"); Stackhouse v. City of East Orange, 2008 

U.S. Dist. LEXIS 90727 (D.N.J. Nov. 7, 2008)(attached hereto as 

Exhibit "B"). 

Accordingly, the Prosecutor is not a “person” within the 

meaning of the Statute and the motion to dismiss must be 

granted.

D. THE DEFENDANT IS ENTITLED TO PROSECUTORIAL IMMUNITY

As a general rule of law the Defendant is absolutely immune 

from suit based on prosecutorial immunity. A prosecutor's acts 

that occur in the course of his or her role as advocate for the 

state entitled to absolute immunity. Buckley v. Fitzsimmons, 

509 U.S. 259, 273 (1993). Prosecutorial immunity is absolute 

without regard to the legal theory under which civil liability 

is sought because of "concern that harassment by unfounded 

litigation" could both "cause a deflection of the prosecutor's 

energies from his public duties" and lead him to "shade his 

decisions instead of exercising the independence of judgment 

required by his public trust." Van de Kamp v. Goldstein, 129 S. 

Ct. 855 (2009) (citing Imbler v. Pachtman, 424 U.S. 409, 423 

(1976)) (barring suits under 42 U.S.C. § 1983); N.J. Stat. 59:2-

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2 (b), 3-3, 3-8 (barring suits brought under state law); Ludwig 

v. Berks County, 313 Fed. Appx. 479 (3d Cir. 2008). 

When faced with a defense of prosecutorial immunity, the 

Court evaluates the circumstances under a "functional" approach, 

permitting absolute immunity for actions judicial or "quasijudicial" acts performed in the course of the Prosecutor's role 

as State advocate. Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 

2008). Absolute immunity applies regardless of the prosecutor's 

motives. Imbler, 424 U.S. at 409. 

Additionally, prosecutorial immunity extends to the 

prosecutor's supervisors and those who are responsible for 

training, supervising, and disciplining the prosecutor, where 

the allegations specifically challenge the prosecutor's 

discretionary acts. See Van De Kamp v. Goldstein, 129 S. Ct. 

855, 861-62 (2009); Whitfield v. City of Philadelphia, 587 F. 

Supp. 2d 657 (D.N.J. 2008); Carter v. City of Phila., 181 F.3d 

339 (3d Cir. 1999). 

In the recent Supreme Court decision of Van De Kamp, the 

Court concluded that a supervisor's or manager's tasks which 

were directly connected with the prosecutor's advocacy duty were 

entitled to absolute immunity. Van De Kamp, supra. 

Specifically, in Van De Kamp, the plaintiff was convicted of 

murder, but granted habeas corpus where the prosecution did not 

provide plaintiff's attorney with information regarding a 

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jailhouse informant's favorable treatment. Plaintiff 

subsequently filed civil charges against the prosecutor's office 

for failure to train and/or supervise the prosecutor. In 

extending prosecutorial immunity to the entire prosecutor's 

office, the Supreme Court stated: 

had [plaintiff] brought a suit directly 

attacking supervisory prosecutors' action 

related to an individual trial, instead of 

one involving administration, all the 

prosecutors would have enjoyed absolute 

immunity under Imbler. Their behavior, 

individually or separately, would have 

involved "[p]reparation...for...trial," and 

would have been "intimately associated with 

the judicial phase of the criminal process." 

The only difference between Imbler and the 

hypothetical, i.e., that a supervisor or 

colleague might be liable instead of the 

trial prosecutor, is not critical. Given 

these features, absolute immunity must 

follow. 

Id. 

It appears based on Count X, paragraph 62 of plaintiff's 

Fourth Amended Complaint that plaintiff may be alleging a 

Constitutional violation based on the prosecution. As such, if 

in fact plaintiff is making such a claim, the plaintiff's claim 

against defendant should be dismissed as the defendant is 

actually immune from suit based on the well established policy 

of Prosecutorial immunity.

Accordingly, the Plaintiff's claims against Defendant 

should be dismissed as the Defendant is absolutely immune from 

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suit based on the well established policy of prosecutorial 

immunity.

IV. CONCLUSION

Based on the foregoing, Defendant respectfully requests 

that this Court grant the instant Motion to Dismiss, dismissing 

Plaintiff's claims against the Prosecutor. 

Respectfully submitted,

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

By: /s/ Matthew J. Behr

MATTHEW J. BEHR, ESQ.

Attorney for Defendant,

Camden County Prosecutor 

Warren W. Faulk

Woodland Falls Corporate Park

200 Lake Drive East, Suite 300

Cherry Hill, NJ 08002

Phone: 856-414-6048

Fax: 856-414-6077

Email: mjbehr@mdwcg.com

DATE: May 18, 2011

06/2232481.v1

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